The Realities of Adaptive Groundwater Management: Chino Basin, California (Global Issues in Water Policy, 27) 3030637220, 9783030637224

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Global Issues in Water Policy 27

William Blomquist

The Realities of Adaptive Groundwater Management Chino Basin, California

Global Issues in Water Policy Volume 27

Editor-in-Chief Ariel Dinar, Department of Environmental Sciences, University of California, Riverside, CA, USA Series Editors José Albiac, Department of Agricultural Economics, Unidad Economia, CITA-DGA, Zaragoza, Spain Guillermo Donoso, Department of Agricultural Economics, Pontificia Universidad Católica de Chile, Macul, Chile Stefano Farolfi, CIRAD UMR G-EAU, Montpellier, France Rathinasamy Maria Saleth, Chennai, India

More information about this series at http://www.springer.com/series/8877

William Blomquist

The Realities of Adaptive Groundwater Management Chino Basin, California

William Blomquist Department of Political Science Indiana University (IUPUI) Indianapolis, IN, USA

ISSN 2211-0631     ISSN 2211-0658 (electronic) Global Issues in Water Policy ISBN 978-3-030-63722-4    ISBN 978-3-030-63723-1 (eBook) https://doi.org/10.1007/978-3-030-63723-1 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

I started writing about Chino Basin 30 years ago. My interest, even fascination, with it has been renewed a couple of times since then – in the late 1990s and again in the last few years. Some of what is included in this book, especially about the Santa Ana River watershed and the historical development of water institutions there, and the Chino Basin adjudication and Judgment, appeared in a previous book, Dividing the Waters (1992). Those parts have been edited and updated with some new sources but are similar to, and in some places the same as, what appeared there. The rest has been a new venture, covering what happened from the late 1980s through the first half of 2020 and with a view toward Chino Basin as a study in adaptive management. For that opportunity, I am very grateful and have several individuals and groups to thank. Peter Kavounas, the general manager of Chino Basin Watermaster, and Scott Slater, the Watermaster general counsel, contacted me in December 2016 to see whether I would be interested in updating my previous research. Three agencies engaged in Chino Basin governance and management  – Inland Empire Utilities Agency, Three Valleys Municipal Water District, and Western Municipal Water District – contributed funding to support my travel and other expenses for this project. They and the Chino Basin Watermaster made this research possible, while leaving me complete control over the contents, findings, and interpretations you read here. The Vincent and Elinor Ostrom Workshop at Indiana University also supported this project during the 2016–17 academic year. Professor Ariel Dinar, series editor for Springer Nature’s book series Global Issues in Water Policy, graciously invited me to submit this book for that series. Margaret Deignan and Joseph Daniel at Springer Nature provided essential support and assistance as the draft manuscript moved through the publication process. Many people contributed their time to this project. This book is based, among other things, on more than 40 interviews with 38 people conducted over 32 years. There is no way I can adequately express my appreciation for the hundreds of hours of recollections, reflections, and insights those many individuals gave me, some on more than one occasion. One thing I can do, and am happy to have the opportunity to do, is share their names here as a recognition of my gratitude. I am sorry that a few of them are no longer with us to receive even this token appreciation. Thank you to: v

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Blake Anderson John Anderson Richard Atwater Kathy Besser Robert Bowcock Scott Burton Todd Corbin David DeJesus Robert DeLoach Robert DiPrimio Steven Elie Robert Feenstra

Preface

Fred Fudacz Joe Grindstaff Richard Hansen Donald Harriger Kenneth Jeske Robert Kuhn Michelle Lauffer Andrew Malone Ken Manning James Markman Lindell Marsh Donald McIntyre

Donald Peters Robb Quincey Bill Rice John Rossi Thomas Stetson Traci Stewart Gerald Thibeault Susan Trager Geoffrey Vanden Heuvel Martin Zvirbulus

Special mention and thanks to Peter Kavounas, Scott Slater, Mark Wildermuth, and Brad Herrema, with whom I have met, talked by phone, and communicated by email multiple times with countless questions. They have been exceptionally generous with their time and patient in their explanations of projects and programs, studies and reports, and legal proceedings and outcomes. Thank you very much. Thanks also to Anna Nelson at Chino Basin Watermaster who assisted on many occasions with scheduling those visits and conversations. There is a 100-years-plus history of documents associated with the evolution of governance and management institutions in Chino Basin and the Santa Ana River watershed. Thank you to the University of California Water Resources Collections & Archives, and to the unfailing librarians and staff of the IUPUI University Library who fulfilled many Inter-Library Loan requests that assisted this project greatly. Over the years, the Chino Basin Watermaster staff have compiled and maintained an invaluable archive of documents available through their website, www.cbwm.org. That treasure trove serves the high purposes of public information, transparency, and accountability, but also makes it possible for researchers like me to do our work. None of these acknowledgments and credits should be misread as shifting responsibility. Whatever errors you find here are mine alone. In closing, an additional thank you to colleagues who have offered encouragement and listened to me talk about Chino Basin the last few years – Esther Conrad, Rob de Loë, Jan Martinez, Anita Milman, Tara Moran, Tim Quinn, and Leon Szeptycki. And to Liza, for listening, supporting, and loving. Indianapolis, IN, USA September 10, 2020

William Blomquist

Contents

1 The Realities of Adaptive Management ������������������������������������������������    1 1.1 The Case for Adaptive Management of Natural Resources������������    2 1.2 Challenges and Complications��������������������������������������������������������    3 1.3 The Experience of Chino Basin and the Purpose of the Book��������    8 References��������������������������������������������������������������������������������������������������   10 2 The Natural Physical System of Chino Basin����������������������������������������   13 2.1 The Santa Ana River and Its Watershed������������������������������������������   13 2.2 The Chino Basin in the Santa Ana River Watershed����������������������   16 2.3 Natural Water Supplies of Chino Basin������������������������������������������   19 References��������������������������������������������������������������������������������������������������   21 3 The Development of Water Supplies and Water Conservation ����������   23 3.1 Early Development, 1769–1880 ����������������������������������������������������   24 3.2 Water Development and Water Conservation, 1880–1932 ������������   25 3.3 The Chino Basin Protective Association����������������������������������������   28 References��������������������������������������������������������������������������������������������������   30 4 Upstream-Downstream Conflicts, 1930–1960 ��������������������������������������   31 4.1 The Water Conservation Association and the Emergence of Conflict ��������������������������������������������������������������������������������������   32 4.2 The Irvine Company vs. Fontana Union Water Company et al.: The First Upstream-Downstream Litigation ����������������������������������   34 4.3 The View at Mid-Century of Water Supply Prospects for the Santa Ana River Watershed������������������������������������������������������������   35 4.4 The Creation of Water Districts in the Upper Santa Ana River Area����������������������������������������������������������������������   37 4.5 The Second Upstream-Downstream Battle: Orange County Water District v. City of Riverside et al. ����������������������������   39 References��������������������������������������������������������������������������������������������������   42

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Contents

5 Setting the Stage for a Chino Basin Management Program: Changes in Water Use, and the Third Santa Ana River Litigation, 1960–1969������������������������������������������������������������������������������   43 5.1 Increased Water Production and Changing Water Use ��������������������   44 5.2 A Different Approach to Watershed Litigation: Orange County Water District v. City of Chino et al. ����������������������   45 5.3 Performance Under the Santa Ana River Judgment��������������������������   50 References��������������������������������������������������������������������������������������������������   52 6 Adjudication and the Creation of a Chino Basin Governance Structure ��������������������������������������������������������������������������������������������������   53 6.1 Beginning the Negotiation Process ������������������������������������������������   54 6.2 Reviewing the Basin Management Possibilities ����������������������������   56 6.3 Moving the Process into Court ������������������������������������������������������   60 6.4 The Impact of the San Fernando Decision��������������������������������������   62 6.5 The Chino Basin Judgment������������������������������������������������������������   65 6.6 Reflections on the Chino Basin Case and California’s Adjudication Practice����������������������������������������������������������������������   71 6.7 The Governance Structure Created by the Judgment����������������������   73 References��������������������������������������������������������������������������������������������������   78 7 Groundwater Management in Chino Basin During the First 15 Years Under the Judgment ������������������������������������������������   79 7.1 Launching the Governance Structure����������������������������������������������   80 7.2 Operation of the Physical Solution ������������������������������������������������   81 7.3 Basin Storage and Planning������������������������������������������������������������   85 7.4 The Emerging Significance of Water Quality ��������������������������������   87 7.5 Conflict Emerges Over Groundwater Quality and Storage������������   91 7.6 A Lawsuit’s Legacy������������������������������������������������������������������������   99 References��������������������������������������������������������������������������������������������������  101 8 Turbulence: The 1990s in Chino Basin��������������������������������������������������  103 8.1 Paying the Piper but Not Calling the Tune ������������������������������������  105 8.2 Enter the Desalters��������������������������������������������������������������������������  106 8.3 The Regional Board and the Dairies ����������������������������������������������  107 8.4 Why Desalters Are Complicated in Chino Basin����������������������������  108 8.5 Meanwhile, Back to the Storage Issue��������������������������������������������  113 8.6 Good News and Bad News ������������������������������������������������������������  114 8.7 Management Disputes Become Governance Disputes ������������������  116 8.8 “Chinotown” ����������������������������������������������������������������������������������  120 8.9 “A Very Unfortunate Occurrence”��������������������������������������������������  124 8.10 Meet, Confer, Delay, Repeat ����������������������������������������������������������  129 8.11 Judge Gunn Takes Charge��������������������������������������������������������������  131 Reference ��������������������������������������������������������������������������������������������������  137

Contents

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9 An Explicitly Adaptive Management Approach: The Optimum Basin Management Program and a Peace Agreement��������������������������  139 9.1 Moving Forward Amid the Turbulence������������������������������������������  140 9.2 Back to the Desalters����������������������������������������������������������������������  145 9.3 The Optimum Basin Management Program ����������������������������������  149 9.4 Finding Peace����������������������������������������������������������������������������������  154 9.5 The OBMP, the Peace Agreement, and Adaptive Management������������������������������������������������������������������������������������  160 10 The Changed Landscape and Chino Basin Groundwater ������������������  165 10.1 Land Use Changes and Groundwater Effects ��������������������������������  166 10.2 Imported Recharge Water Gets Shaky, Goes Dry ��������������������������  169 10.3 Recycled Water to the Rescue? Yes and No������������������������������������  171 10.4 Capturing (Rights to) More Storm Water����������������������������������������  173 10.5 Adding Recharge Capacity and Flexibility – The Recharge Master Plan and Chino Basin Facilities Improvement Projects��������������������������������������������������������������������������������������������  174 10.6 The 2010 Recharge Master Plan Update and 2013 Amendments ����������������������������������������������������������������������������������  177 10.7 Tackling the Subsidence Problem ��������������������������������������������������  180 11 Changing the Flow ����������������������������������������������������������������������������������  185 11.1 The 2004 Basin Plan Amendment and “Hydraulic Control:” Fixing the Leak and Cleaning the Basin ����������������������������������������  187 11.2 The Desalters����������������������������������������������������������������������������������  191 11.3 Peace II��������������������������������������������������������������������������������������������  194 11.4 Dispute and Delay in Peace II Implementation������������������������������  203 11.5 Completion of the Desalter Expansion and Attainment of Hydraulic Control ����������������������������������������������������������������������  206 11.6 Water Quality Problems Persist������������������������������������������������������  208 Reference ��������������������������������������������������������������������������������������������������  209 12 Protecting Habitat and Arresting Contamination��������������������������������  211 12.1 Watching Out for Hydraulic Control’s Effects�������������������������������  213 12.2 Locating, Containing, and Intercepting Contamination Plumes��������������������������������������������������������������������������������������������  216 References��������������������������������������������������������������������������������������������������  220 13 Resetting and Updating ��������������������������������������������������������������������������  221 13.1 The 2010 Safe Yield Reset��������������������������������������������������������������  222 13.2 The 2020 Safe Yield Reset��������������������������������������������������������������  230 13.3 A Storage Management Framework and a New Chino Basin Water Bank��������������������������������������������������������������������������������������  232 13.4 The 2020 Optimum Basin Management Program Update��������������  237 Reference ��������������������������������������������������������������������������������������������������  239

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Contents

14 The Governance and Administration of Chino Basin Groundwater Management��������������������������������������������������������������������  241 14.1 The Information Foundation of Chino Basin Management������������  242 14.2 Reporting and Accountability ��������������������������������������������������������  245 14.3 Stakeholder Engagement����������������������������������������������������������������  252 14.4 Roles and Relationships������������������������������������������������������������������  253 14.5 The “Watermaster Process”������������������������������������������������������������  257 14.6 Watermaster Reappointment Since 2000����������������������������������������  260 14.7 The Changing Pools������������������������������������������������������������������������  260 14.8 Attorneys and Engineers ����������������������������������������������������������������  264 References��������������������������������������������������������������������������������������������������  265 15 Looking Ahead and Lessons Learned: The Prospect of Continual Adaptation��������������������������������������������������������������������������  267 15.1 Uncertainty as a Certainty��������������������������������������������������������������  268 15.2 The Realities of Adaptive Management and Chino Basin’s Lessons������������������������������������������������������������������������������  270 References��������������������������������������������������������������������������������������������������  279 Bibliography ����������������������������������������������������������������������������������������������������  281 Cases����������������������������������������������������������������������������������������������������������  282 Index������������������������������������������������������������������������������������������������������������������  285

List of Figures

Fig. 2.1 Fig. 2.2 Fig. 2.3

Map of the Santa Ana River Watershed. (Source: Orange County Water District)���������������������������������������������������������������������   14 Chino basin boundaries and geologic features. (Source: Chino Basin Watermaster)�������������������������������������������������   17 Groundwater movement in Chino Basin. (Source: French, 1972)���������������������������������������������������������������������   20

Fig. 3.1

Citrus Grove in Chino Basin c. 1900. (Source: California Historical Society Collection, University of Southern California)��������������������������������������������������������������������   24

Fig. 8.1

Groundwater Level Decline 1933-2000 and Subsidence Area. (Source: Chino Basin Watermaster)�������������������������������������������������  104

Fig. 9.1

Chino Basin Management Zones. (Source: Chino Basin Watermaster)������������������������������������������������������������������������������������  151

Fig. 10.1 Land use changes: 1933 versus 2012. (Source: State of the Basin Report 2018)����������������������������������������������������������������  167 Fig. 10.2 Cities in Chino Basin and county boundaries. (Source: Chino Basin Watermaster)��������������������������������������������������������������������������  168 Fig. 10.3 Recharge in Chino Basin 2006–2017. (Source: Chino Basin Watermaster)������������������������������������������������������������������������������������  179 Fig. 10.4 Recharge facilities in Chino Basin. (Source: State of the Basin Report 2018)������������������������������������������������������������������������������������  181 Fig. 11.1 Groundwater Level Changes 2000–2018. (Source: State of the Basin Report 2018)��������������������������������������������������������������������������  207 Fig. 11.2 Nitrate Concentrations in Chino Basin 2018. (Source: State of the Basin Report 2018)����������������������������������������  209 Fig. 12.1 Prado Basin habitat area. (Source: Chino Basin Watermaster)��������  213 Fig. 12.2 Chino Basin groundwater contamination plumes. (Source: State of the Basin report 2018)������������������������������������������  217 xi

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List of Figures

Fig. 13.1 Drivers, trends, and implications figure from 2020 OBMPU process. (Source: Chino Basin Watermaster)�����������������������������������  237 Fig. 14.1 Water service areas in Chino Basin. (Source: State of the Basin Report 2018)������������������������������������������������������������������������������������  254 Fig. 15.1 Past pumping projections and recent actual pumping. (Source: Chino Basin Watermaster)�������������������������������������������������  272

List of Boxes

Box 5.1

The Three Upstream-Downstream Lawsuits on the Santa Ana River���������������������������������������������������������������������   50

Box 6.1

Groundwater Rights and Governance Roles in the 1978 Chino Basin Judgment���������������������������������������������������������������������   76

Box 14.1 Chino Basin and the Sustainable Groundwater Management Act (SGMA)�������������������������������������������������������������������������������������  248

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The Chino Basin Chronology

1769   Portola expedition camps in Santa Ana Valley; river and valley named after St. Anne. 1776    Francisco Garces expedition reaches Chino Basin floor at Cucamonga Creek. 1837–1841  Ranchos established in Chino Basin. 1870   First drill rigs and deep pumps introduced, allowing access to ground water after Spanish ranchos largely eliminated by drought. 1890   First irrigation districts organized in Chino Basin. 1895   First water spreading along San Antonio Creek in western portion of Chino Basin. 1902   Publication of J.B. Lippincott’s studies of water development in the upper Santa Ana River area for U.S. Geological Survey. 1905   Publication of W.C.  Mendenhall’s study of hydrology of the San Bernardino Valley for U.S. Geological Survey. 1907    Orange, Riverside, and San Bernardino Counties form the Tri Counties Reforestation Committee. 1908   Early water spreading on Cucamonga Creek in northern portion of Chino Basin; California Supreme Court rules in San Antonio Creek suit. 1909   Orange, Riverside, and San Bernardino Counties form the Water Conservation Association. 1911   Water Conservation Association begins water spreading on Santa Ana River. 1913    Municipal Water District Act and California Water District Act adopted. 1927    Monte Vista County Water District (later Monte Vista Water District) formed. 1928   Metropolitan Water District of Southern California (MWD) created. 1931   Chino Basin Protective Association formed by individuals and corporations in the basin; San Bernardino Valley Water Conservation

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The Chino Basin Chronology

District organized; California Legislature appropriates $400,000 for water conservation and flood control in Santa Ana River watershed. 1932   Irvine Company files suit against water users in the upper basin, claiming that upstream actions endanger the Company’s riparian right and the supply to its 80 wells. 1933   Orange County Water District established. 1939   San Bernardino County Flood Control District established. 1941   Prado Dam built by the Army Corps of Engineers. 1942   Upper Basin – Lower Basin litigation (Irvine Company lawsuit) settled with an agreement governing upstream spreading activities. 1948   First wastewater treatment plant constructed for previously unsewered areas in Chino Basin, signaling the rapid postwar development taking place. 1949   Chino Basin Water Conservation District established to succeed the Protective Association; deliveries of MWD Colorado River water to Chino Basin begin. 1950   Chino Basin Municipal Water District formed. 1951   Orange County sues upstream cities over ground waters of the Santa Ana River basin (Orange County Water District v. City of Riverside et al.); Chino Basin Municipal Water District annexes to MWD. 1954   Western Municipal Water District of Riverside County formed and annexed to MWD; San Bernardino Valley Municipal Water District formed. 1955   Cucamonga County Water District (later Cucamonga Valley Water District) formed. 1956   Jurupa Community Services District established. 1957   Orange County Water District suit against four upstream cities tried; judgment entered (subsequently upheld and modified on appeal). 1963   OCWD files action seeking adjudication of water rights of substantially all users in the area tributary to Prado Dam in the Santa Ana River watershed (Orange County Water District v. City of Chino et al.). 1968   Santa Ana Watershed Planning Agency formed as a joint-powers agency of upper and lower Santa Ana River watershed districts. 1969   Settlement of the OCWD action for adjudication of rights in the Santa Ana River watershed; Santa Ana River Watermaster created. 1975   Complaint filed beginning Chino Basin adjudication. Senate Bill 222 passes California Legislature, authorizing collection of pump tax to fund studies of groundwater basin overdraft and development of basin management plan. Santa Ana Watershed Project Authority (SAWPA) established. 1978   Chino Basin adjudication completed; Chino Basin Municipal Water District named Watermaster. District staff member Frank Brommenschenkel is the first Chief of Watermaster Services.

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1980   Donald Peters succeeds Brommenschenkel as Chief of Watermaster Services. 1984    SAWPA and U.S.  Environmental Protection Agency contract for cleanup of Stringfellow toxic waste site; first year for transfer of unallocated safe yield water from Agricultural Pool to Appropriative Pool. 1985   Removal of contaminated wastewater at Stringfellow Acid Pits begins. 1988   Appropriative Pool and Agricultural Pool committees agree to annual transfers of unused water allocations from the latter to the former, rather than transfers at the end of five-year periods as provided originally in the Judgment. 1988   Chino, Norco, and San Bernardino County Water Works District No. 8 begin legal proceedings (the “moving parties’ lawsuit”) for review of Chino Basin Watermaster’s performance. 1989   Judge Turner issues orders in the moving parties’ lawsuit, directing Chino Basin Watermaster to undertake a study of basin socioeconomic conditions and to prepare an Optimum Basin Management Plan. Ad Hoc Committee begins work on development of an Optimum Basin Management Plan, which is later named the Chino Basin Water Resources Management Study. 1991   City of Chino Hills incorporated, succeeding to the water rights and water service delivery obligations of San Bernardino County Water Works District No. 8. 1993    Advisory Committee and Watermaster Board approve Resolution 93-10-1, on meeting replenishment needs for the water that will be extracted from the basin for the desalter project. 1994    Traci Stewart becomes Acting Chief of Watermaster Services in February, then Chief of Watermaster Services in August. 1995    At a November 25th Agricultural Pool Committee meeting, a Watermaster Board member recommends that unused Agricultural Pool water be committed to basin cleanup. At a December 7th meeting, the Advisory Committee discusses whether to recommend replacing the Chino Basin Municipal Water District board as Watermaster. 1996   At a January 25th meeting, the Advisory Committee votes to recommend removal of Chino Basin Municipal Water District as Watermaster and moves to have the Advisory Committee appointed as Watermaster. 1997   In January, Chino Basin Municipal Water District board orders an audit of Watermaster staff, over the objection of the Advisory Committee. Watermaster Advisory Committee moves to replace Chino Basin Municipal Water District as Watermaster. Dispute over Watermaster Counsel. Anne Schneider appointed Special Referee on audit issue and on motion to appoint a new Watermaster Board.

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The Chino Basin Chronology

1998   Judge Gunn issues a ruling creating a nine-member board for the Chino Basin Watermaster. First nine members to serve as interim Watermaster. Judge Gunn grants motion to approve the scope and level of detail of the Optimum Basin Management Plan (OBMP). Construction begins on Chino Basin’s first desalter for groundwater treatment. 1999   Chino Basin Municipal Water District becomes the Inland Empire Utilities Agency. OBMP Phase 1 Report completed. Judge Gunn holds hearing on motion to appoint the 9-member interim Watermaster Board as Watermaster. 2000    Judge Gunn appoints 9-member Watermaster board for a fiveyear term. Scott Slater becomes Watermaster general counsel. California voters approve a water bond measure, Proposition 13, which includes funding for the Santa Ana Watershed Project Authority and projects in Chino Basin. OBMP Implementation Plan and Peace Agreement concluded and signed. 2001   Court issues orders approving the Peace Agreement, and Chino Basin Watermaster Rules and Regulations. Chino Basin Facilities Improvement Project (CBFIP) agreed to among Watermaster, IEUA, Chino Basin Water Conservation District, and San Bernardino County Flood Control District. First desalter begins operation. 2002   Subsidence Interim Plan transmitted to the Court. Recharge facilities financing agreement approved for CBFIP. First “State of the Basin” report issued. John Rossi becomes Chief Executive Officer of Chino Basin Watermaster. 2003   Chino Basin Watermaster and MWD enter into Dry-Year Yield storage project. 2004    Watermaster’s Storage and Recovery Program submitted to and approved by Court. Santa Ana Regional Water Quality Control Board (RWQCB) approves Basin Plan for the Santa Ana River Watershed, which allows Chino Basin agencies to increase recycled water use within the basin, provided water outflow to the Santa Ana River is minimized. 2005   As a follow-up measure to the Basin Plan, RWQCB issues an Order to the Chino Basin Watermaster to implement steps necessary to attain Hydraulic Control. Ken Manning succeeds John Rossi as Watermaster CEO. 2006   Court reappoints Chino Basin Watermaster for a 5-year period.

The Chino Basin Chronology

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Phase II of Chino Basin Facilities Improvement Project (CBFIP) agreed to among Watermaster, IEUA, Chino Basin Water Conservation District, and San Bernardino County Flood Control District. 2007   Peace II agreements approved. 2008    Judge Gunn retires; Chino Basin case is reassigned to Judge John Wade. Recharge Master Plan submitted to Court and approved. RWQCB issues a new Cleanup and Abatement Order to San Bernardino County requiring mitigation of the Chino Airport Plume. Judge Wade relieves the Special Referee Anne Schneider and her technical advisor Joseph Scalmanini, who had been serving since 1997. 2009   Judge Wade retires; Chino Basin case is reassigned to Judge Stanford E. Reichert. 2010   Recharge Master Plan Update (RMPU) approved by Watermaster Advisory Committee and Watermaster Board, submitted to and approved by Judge Reichert. Non-Agricultural Pool Committee files challenge to sale of stored water; Judge Reichert rejects Pool’s motion. 2011    Court of Appeals overrules Judge Reichert’s decision on NonAgricultural Pool challenge; settlement reached on stored water sale. Court reappoints Chino Basin Watermaster for a 5-year period. Ken Manning leaves Watermaster CEO position at end of February. Danielle Maurizio, Assistant General Manager, serves as interim CEO from March 1st to May 1st. Desi Alvarez is named the new CEO, but serves only until November 2011. Danielle Maurizio steps back in as interim CEO from November 2011 until January 2012. MWD Local Resources Program agreement with WMWD provides financial support needed to implement desalter expansion. 2013   Peter Kavounas becomes Chino Basin Watermaster General Manager. Amendment to the 2010 RMPU submitted to and approved by Court. 2014   Safe yield recalculation process formally begins. 2015   Prado Basin Habitat Sustainability Committee begins its work. Safe Yield Reset Agreement (SYRA) completed and submitted to Court, but objected to. 2016   Court reappoints Chino Basin Watermaster for a 3-year period. Judge Reichert issues a tentative ruling approving the SYRA in part and denying it in part. Basin Safe Yield of 135,000 acre-feet per year approved. 2017   Judge Reichert issues orders on the safe yield reset; appeal filed. 2018   Court grants motion to reappoint Chino Basin Watermaster for a 5-year period. 2019   Fourth District Court of Appeal approves appellants’ petition for dismissal of the appeal of the basin safe yield reset order. Basin Safe Yield is reset to 135,000 acre-feet per year.

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Storage Framework investigation completed. Optimum Basin Management Plan Update process conducted, with listening sessions, technical memoranda, and a draft report. 2020   Optimum Basin Management Plan Update and Storage Management Plan final reports presented to Pool Committees, Advisory Committee, and Watermaster Board for review, approved by Board. Judge Reichert approves the 2020 Safe Yield Reset; Basin Safe Yield is 131,000 acre-feet per year for 2021 through 2030.

Chapter 1

The Realities of Adaptive Management

Anything that can be done, why, obviously you people have to live together and work together for a long time and this water basin’s going to be good or bad or indifferent in the future, depending on how well it’s managed. – The Hon. Judge Don A. Turner (Chino Basin Municipal Water District v. City of Chino et al. Reporter’s Transcript of Oral Proceedings, February 2, 1989).

Abstract  This chapter introduces the book and reviews the concept of adaptive management. The rationale for and benefits of adaptive management are summarized. So are the difficulties in carrying out adaptive management. Chino Basin is a large groundwater basin in Southern California, relied upon heavily by a large population and economy. The effective and sustainable management of Chino Basin is a high stakes endeavor. In this location, adaptive management of the groundwater resource (and interrelated other resources) emerged and has been institutionalized, through significant effort and with considerable difficulty but also considerable success. Keywords  Adaptive management · Natural resources · Groundwater · California · Chino Basin

The sustainable management of natural resources – or, more accurately, the sustainable management of human uses of natural resources – has been an enduring challenge. This has been the case especially with water resources. The challenge is of long standing, but the past 40 years have seen the rise to prominence and popularity of a recommended approach known as adaptive management. Although many researchers and theorists have written about adaptive management, this book is a

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_1

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story of adaptive management in practice. To be more specific, it is the story of adaptive groundwater management in the Chino Basin in southern California.

1.1  T  he Case for Adaptive Management of Natural Resources Calling adaptive management a popular recommendation is really an understatement. As Biber (2013: 935) put it, “Adaptive management has become a dominant theme in the scholarship and practice of environmental law, so dominant that many scholars and managers assert that [it is] the only feasible option.” In the field of groundwater resources management more particularly, a review by Thomann, Werner, Irvine, and Currell (2020) found that the term adaptive management is now widely employed in groundwater plans and other management documents. Its prominence and prevalence therefore warrant some review of what it means, the reasons it is advocated, and the benefits that are expected from it. There is no single authoritative definition of adaptive management, but the essence and basic contours of its meaning can be derived from the now voluminous literature about it. The essence is treating a natural resource system – for our purposes, a groundwater basin – more as a puzzle to be explored than a solution to be implemented. Around this essence we can discern some basic contours. One is that management actions we take in relation to the resource should be regarded as hypotheses or experiments (Hoffman & Zellmer, 2013: 828; Ostrom, 2005: 220). The purpose of those management actions is not only to achieve some desired end-­ state; it includes eliciting information about the resource system and its responses, in order to learn more about it and them (Holling, 1978; Medema, McIntosh, & Jeffrey, 2008). This feedback is used to inform future actions. Another basic contour of the adaptive management approach is that this process of experimentation, feedback, learning, and adjustment is both iterative and deliberate. Adaptive management is not a simple process of trial and error (Thomann et al., 2020). It is a planned and sustained strategy, involving a phase of deliberation, input, planning and the selection of management actions, followed by a phase of data gathering and analysis, then another phase of deliberation, input, planning and action selection, and so on indefinitely (McLain & Lee, 1996; Medema et al., 2008; Williams, 2011; Smith et al. 2016). In the succinct summary by Megdal et al. (2018: 486), adaptive management “incorporates uncertainty into water management by monitoring outcomes over the long run and revisiting objectives and action plans in an iterative process.” The reasoning behind adaptive management includes uncertainty, complexity, and multiple goals – all of which are characteristic of water resources management. Uncertainty cannot be reduced to zero, despite centuries of effort to channelize, pipe, pump, and impound our way to a determinate steady state of water volumes and flows. The dynamic nature of water resources, climate, and other earth systems continue to elude human control. Adaptive management was founded on the realization that a wiser course would be to act, learn, and adjust, act, learn, and adjust. The

1.2  Challenges and Complications

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emphasis on action is intentional. Uncertainty need not be paralyzing, nor must it trigger some endless process of research while we try to figure everything out. It is not solely learning before doing. It is “learning while doing. Adaptive management does not postpone action until ‘enough’ is known but acknowledges that time and resources are too short to defer some action, particularly actions to address urgent problems” (Lee, 1999, italics in original). Adaptive management emerged from the realization of the complexity of resource systems and the fact that the management of human interactions with them always entails the pursuit of multiple goals. Any water resource, such as an aquifer, is not only intrinsically complex (Blomquist, 2020); it is also enmeshed in a web of connections to land uses, soil composition, seismic activity, surface water resources, weather and climate, plus the myriad ways in which its inflows and outflows are tied to human choices and actions (Chaffin, Gosnell, & Cosens, 2014; Ross & Martinez-­ Santos, 2010). Those human choices and actions also reflect multiple and sometimes conflicting goals and values. We want many things from any given water resource, and the pursuit of one may take us away from another.1 This is another reason for a management approach focused on planning, acting, monitoring, learning, and adjusting. The underlying reasoning for adaptive management implies the benefits that are expected from it. Adaptive management yields greater learning about a resource and human effects on it than a fixed-objective approach. This advantage should lead to improvement of policy and management effectiveness (McLain & Lee, 1996; van Buuren, 2013). With particular reference to groundwater management, Howard (2015: 2552) proposed that “water supply security can be significantly enhanced by adopting an adaptive management approach… that allows decision-makers to adjust and fine tune the management plan so more is learned about the aquifer and its behaviour.” Adaptive management is not a random walk: more learning should lead to better action selection and better action selection should lead to more desirable outcomes.

1.2  Challenges and Complications Given that adaptive management has been advocated for more than four decades, with sound underlying reasons and the promise of improved outcomes, it is at least somewhat remarkable that it does not seem to be practiced to nearly the extent it has been preached. In regard to natural resource management generally, adaptive management advocate Kai Lee (1999) observed somewhat wistfully, “Adaptive management has been much more influential as an idea than as a way of doing conservation so far.” Fifteen years later, Williams and Brown’s (2014: 465) assessment was 1  As water resource professionals have observed, for example, a flood-control manager wants the water level in a reservoir low, an irrigation manager wants it high, and recreational users want it kept consistent.

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similar: “Though it offers new opportunities to inform decision-making and improve the management of natural resources, the record of success of adaptive management remains limited.” (See also Allen and Gunderson 2011; Biber, 2013: 936.) More specifically regarding groundwater, Megdal et  al. (2018: 492) noted that despite adaptive management having been “widely acclaimed by scholars… U.S. practice shows a big gap.” Similarly, based on their review of the literature and a set of cases, Thomann et al. (2020: 9) reported “a disconnect between the literature definitions of [adaptive management] and practical groundwater applications.” This gap between advocacy and application calls for explanation. The clearest answer is that adaptive management is truly difficult. There are multiple overlapping reasons, and what they add up to is that adaptive management is hard to do. The basic idea of it – act, learn, adjust – does not seem difficult at all. The realities of adaptive management prove to be something else entirely. Adaptive management is demanding, first, because it requires patience and persistence. That may sound counterintuitive on the surface, since adaptive management entails change and adjustment. In practice, however, a deliberate strategy of planning, monitoring, analysis, and reconsideration necessitates a long-term commitment that is not for the fainthearted (Biber, 2013; Lee, 1999). Observing the response of a resource system – particularly something like a groundwater basin – can take a long time, especially in order to discern the signal of response to a specific management action from the noise of everything else that could have been influencing the system at the same time. The process of data gathering and analysis can itself be lengthy, but in keeping with adaptive management principles it must be followed by a process of deliberation and assessment to determine the significance and implications of those findings, i.e., what they mean for the management program and what changes in practice are indicated, if any. This would present a challenge even if we were to imagine a single decision maker; in actual resource management situations, of course, there is never a single decision maker. The observations about system behavior, whether and how that behavior was related to the management action(s), and what it may portend for subsequent action – in actual setting, all of this must be processed by multiple participants, and some method for input and discussion leading to deliberation and decision must follow. (As stated at the outset, what is being “managed” is not so much the resource as the humans who use it.) There is an additional complication here. In adaptive management, patience is a virtue but delay is a vice. The commitment to an ongoing process of information gathering and analysis can be exploited tactically by participants who for whatever reason may wish to postpone an impending management action (Hoffman & Zellmer, 2013: 830). Therefore, methods for moving from analysis and action must be designed carefully, allowing for sufficient input, discussion, and deliberation while trying to prevent ceaseless calls for more data and more study from grinding the management program to a halt. Maintaining this balance is itself difficult. In any case, the sustained attention and commitment that adaptive management requires in practice can be difficult for any group of people to muster and maintain (Medema et al., 2008). This realization connects with three other challenges and

1.2  Challenges and Complications

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complications of adaptive management: cost, capacity, and decision-making structures. Adaptive management is costly. Most immediately and obviously, the multiple monitoring protocols and practices needed are expensive to put into place, maintain over time, and upgrade and improve occasionally as better technologies become available. As we shall see in subsequent chapters, in a groundwater basin, monitoring resource conditions to support adaptive management can require devices to (1) measure extractions from wells, (2) monitor groundwater levels, (3) determine direction and rates of flow of underground water into, within, and out of the basin, (4) sample various indicators of groundwater quality and contamination, and track changes in magnitude and direction of contaminants over time, (5) measure changes in the land surface where subsidence may be a problem, (6) detect flows and quality of surface waters that may be contributing recharge to groundwater or deriving base flows from groundwater, and (7) assess the status of species and habitat that depend on shallow groundwater or base flows from groundwater. There may be others, but this list should suffice for the point. Each device generates a stream of data to be recorded, analyzed, and archived. Those data, and findings derived from them, become subjects of discussion and input from participants, which means that the data also need to be “accessible to everyone involved in management and decision making [which] puts high demands upon information systems, databases, and monitoring instruments” (van Buuren, 2013: 163). This is expensive, and it is an ongoing expense. It therefore may be difficult to sustain indefinitely, especially as social and economic conditions fluctuate. As Medema et al. (2008) concluded, “long-term sources of funding are crucial for the [adaptive management] approach.” Breakdowns or gaps in information are especially deleterious for a program of adaptive management that depends centrally on learning: “the opportunity to learn in the process is often missed through failure to devote resources to monitoring, review, and adjustment” (Cosens et al., 2018: 161; see also Thomann et al., 2020: 3; McLain & Lee, 1996: 439). Money is thus not the only resource that is critical to an adaptive management program; it is equally essential to find and retain personnel who can analyze data streams, understand the state of monitoring technology and when upgrades or replacements may be necessary, and present findings in a comprehensive yet comprehensible fashion to participants for their deliberation and decision making. The decision making processes and structures themselves are therefore an important consideration in the development and sustained conduct of an adaptive management regime. As alluded to already, in any actual adaptive management program there will be multiple participants – not only multiple resource users but multiple decision makers. Furthermore, nearly all of those decision makers will be representing diverse organizations (public or private) or constituencies. This aspect of the reality of adaptive management presents it own challenges and complications, namely, those of coordination and collaboration and how to sustain commitment on a multi-organizational scale. Commonly, in such polycentric situations (Blomquist & Schroeder, 2019), the organizations involved will have differing purposes and foci. In a groundwater basin, for instance, some organizations will be interested

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primarily in extracting groundwater supplies for uses on overlying lands, others on the operation of public water or wastewater systems, others on water quality and public health, or flood control and public safety, and so on. As noted by Miller et al. (2016: 10), the “range of interests, values, and disciplines in water decisions has expanded… increasingly transforming water management from a technical, engineering driven exercise to a much more complicated endeavor.” In these circumstances, adaptive management’s emphasis on reviewing information and adjusting plans and actions is much easier said than done. The gap between advocacy and application of adaptive management is attributable partly to this aspect of institutional capacity: the ability to develop inter-organizational cooperation and sustain it for long periods. Long ago, McLain and Lee (1996: 446) pointed out that “the adaptive management literature pays little attention to the question of what types of institutional structures and processes are required for the approach to work on a large-scale basis.” They recognized not only how vital but how difficult this question may be: “the problem is one of creating an institutional framework that promotes the coordination of management activities undertaken by many loosely connected, but interdependent, institutions” (1996: 446). Twenty-five years later, it is fair to say that this question has gained greater attention but remains both essential and unresolved. Lee (1999) realized that this daunting coordination problem could be the undoing of an adaptive management effort. All stakeholders may not coalesce around the effort and maintain their commitment over time, with “each weighing anticipated benefits against costs and risks. It is likely in such a setting that some members of the coalition will waver or resist participating.” Even if there were no differences in priorities and values, inter-organizational divergence of preferences may arise in light of the high demands of adaptive management in terms of bearing costs, building capacity, and sustaining both. We cannot presume that individuals and organizations will simply agree on what is worth paying for, who should pay, or how benefits are shared or divided. Even agreements reached at one time may not persist. Adaptive management therefore can be conflictual. Although he thought adaptive management “reveals conflict rather than causing it,” Lee (1999) nonetheless urged attention to conflict because the patience and persistence that are needed for effective learning and deliberative processes “turn out to be hard to muster where there is conflict – that is, in all the important cases.” Indeed, because of its emphasis on information gathering and review, the adaptive management approach is likely to result in revelations of mistakes, of management actions that made things worse instead of better (Lee, 1999), and those realizations may themselves spark disagreements. Conflict, however, is likely to precede as well as follow adaptive management. Under conditions of resource scarcity or degradation, management can be expected to entail changes that are anticipated to work to the detriment of individuals or organizations who have benefited from the status quo ante. In the illuminating assessment by Doremus and Hanemann (2008: 62):

1.2  Challenges and Complications

7

The water status quo is one of the most tenacious of what Charles Wilkinson has dubbed ‘the lords of yesterday.’ It tenaciously resists change, even when it is plainly getting in the way of solving modern problems…. Whereas building new infrastructure requires only time and money, changing entrenched legal rules, informal entitlements, and institutions tailored to antiquated social needs and goals requires overcoming history and human nature.

Under conditions such as these, conflict may be “a common and sometimes necessary element of change” (Lopez Porras, Stringer, & Quinn, 2020: 2). As the insightful water scholar Rob de Loë quipped during a conversation we had about the challenges of adaptive management, “Who doesn’t like change, right?” The fact that change is both a core element and a likely outcome of adaptive management highlights additional reasons why the gap between prescription and practice has been wide. In certain respects, adaptive management runs contrary to familiar criteria and practices of management, whether with respect to natural resources or other matters. Adaptive management’s purposeful incorporation of uncertainty, the pursuit of learning, and openness to change can be unsettling in a variety of ways. It diverges from long-standing and deeply-held preferences for stability in law and policy, and for the managerial execution of plans by achieving pre-specified objectives. C.S. Holling, to whom primary credit is usually given for the concept of adaptive natural resource management, understood how it could clash with established thinking in engineering and other sciences. That established thinking spawned notions of managing toward some equilibrium state with “a single operating objective” based on conceptions of the material world as fundamentally static or at least convergent (Holling & Meffe, 1996: 333). Kai Lee elaborated on the contrast, noting that in adaptive management, “the goal is to learn something: experiments can surprise the experimenter, and one mark of a good scientist is that she recognizes surprise and pursues its implications. This has not been considered the mark of a good manager, however, who is rewarded instead for steadfast pursuit of objectives” (1999, italics in original; see also Allen and Gunderson 2011). This can be true of managers in either the public or private sectors. Law is another profession that values stability highly, and legal thinking (as well as legal action and argumentation) is also prevalent in natural resource management at least in the United States and other places with comparable systems. Groundwater users in particular often view their extraction entitlements as property rights and, in some legal systems, they are. That status tends to imbue them with a sense of inviolable certitude. By contrast, managing groundwater adaptively may and often will mean that, as more is learned about the resource or as the resource itself changes in response to other factors, extraction entitlements that were allocated at one time are no longer supportable or sustainable. This is usually not a problem if entitlements can be raised, but resistance and conflict become likely if they are to be lowered. By extension, people make many investments related to their expectations about water supplies  – housing developments, commercial enterprises, crop selection, etc. Assuring the viability of investments is a key rationale for the value the legal profession places on stability in the law (Clarvis, Allan, & Hannah, 2014: 99; Doremus & Hanemann, 2008: 63). Thus, “adaptation timeframes [must] consider both the need

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for adjustment and the economic need for stability…. [S]triking the appropriate balance of stability and flexibility is a fundamental tension in the application of law” (Cosens et al., 2018: 161). Regulatory policy and the traditional administration of public agencies follow suit, and adaptive timeframes are problematic there as well. Public officials may not be interested in resource management with long time horizons and provisional outcomes; they can be expected to prefer shorter-term expectations and more definite results (van Buuren, 2013: 169). As Wyborn and Dovers (2014: 5–6) stated, “public administration does not easily admit uncertainty, nor does politics. Accountability for expending public finance is harder when goals are unclear and evaluation difficult. Agencies must adhere to their specific mandates, goals and operating procedures.” Thus, as Thomann et  al. (2020) observed, the rhetoric of adaptive management may appear in policy documents but actual practice can be different. In a related vein, we can identify an internal tension inherent in adaptive management itself. As discussed earlier, actual resource management settings involve multiple public and private organizations whose actions require non-trivial amounts of coordination and cooperation. An extensive research literature on management and administration finds that inter-organizational coordination is supported by trust, and trust in turn is undergirded by perceptions of legitimacy and reliability that typically have to be built over long periods. Sustaining an adaptive management program, on the other hand, may require the introduction of new organizations, the reconfiguration of relationships among existing organizations, or both. Institutions are essential to build and sustain adaptive management regimes but are also susceptible to rigidity and resistance to change (Beunen, Patterson, & Van Assche, 2017). The inherent tension comes down to this: familiarity and stable relationships foster valuable trust, which facilitates effective coordination, which is necessary for adaptive management, and yet that stability “can also lead to a bias for the status quo which stands as a barrier when transformation is warranted” (Cosens et al., 2018: 157). Finding and maintaining enough stability to allow adaptive management to operate while stopping short of getting locked into practices that become encrusted with institutional inertia is a supremely difficult balance to keep.

1.3  T  he Experience of Chino Basin and the Purpose of the Book After reviewing this litany of challenges and complications, one might reasonably expect this book to be a story of the failure of adaptive groundwater management in Chino Basin. It is not. This book is about a success story but it is also a cautionary tale. Adaptive management is a sound concept for addressing the interaction of people with complex natural resource systems such as Chino Basin. Adaptive management is also hard, rife with difficulties and vulnerable to a multitude of hazards.

1.3  The Experience of Chino Basin and the Purpose of the Book

9

What has taken place and continues to evolve in Chino Basin illustrates this full range of adaptive management experiences. Chino Basin’s management history is valuable because it includes a pre-adaptive management period, a harrowing transition to adaptive groundwater management, and now 20 years’ experience implementing and revising it. The governance structure within which adaptive groundwater management has developed and been implemented in Chino Basin is especially complex, so its story also provides insight into how basin governance can both enable and complicate an adaptive groundwater management program. Chino Basin exhibits the realities of adaptive groundwater management. Overall, readers who are enamored of adaptive management and eager to see it applied in groundwater systems everywhere may learn something from the experience of Chino Basin. Readers who may be skeptical that adaptive groundwater management could ever be implementated and maintained in a large and highly pressured basin may learn some things from the experience of Chino Basin too. Through an arduous process and remarkable effort, a sophisticated groundwater management program has been developed and implemented. It has weathered the transformation of the landscape, shifts in the availability and reliability of every other water source, multiple incidents and sources of contamination, and a century of litigation. It has been difficult and expensive and conflictual, and nonetheless successful. These changes have transpired in a location where the stakes are formidable. Chino Basin is the direct source of water supply for more than a million people. It is situated in one of the most rapidly-growing areas of southern California, in between the San Gabriel Valley and the “Inland Empire” cities of San Bernardino and Riverside.2 Transformation is an apt term for what has occurred in Chino Basin. For many decades and until about 40 years ago, most of the Chino Basin area was covered with citrus groves, vineyards, and dairy ranches. Today, a receding number of ranches and vineyards share the land with all of the manifestations of a modern metropolis: highways, thoroughfares, and streets, residential subdivisions, retail shopping centers, office parks, industrial facilities, Ontario International Airport, and many municipalities. The overall result is a complex pattern of development that continues to experience significant ongoing change. The development of Chino Basin's water resources and their management has been similarly complex and changing. As the middle portion of the Santa Ana River watershed, the Chino Basin is enmeshed in the arrangements for dividing and managing the water resources of the Santa Ana River system. Chino Basin is the largest groundwater basin in southern California. It provides the majority of supply for the drinking water and sanitation needs of the population, as well as water for direct use on the overlying land. The basin’s underground aquifers provide an important source of water storage and a crucial barrier against the effects of drought, a recurring feature of the region. In addition, shallow groundwater as well as surface water flows at the southern end of the basin support the largest area of riparian habitat in

2  California Department of Water Resources (1987) California Water: Looking to the Future. Bulletin No. 160-87. Sacramento, CA: State Printing Office, p. 7.

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southern California. Failures or even shortfalls in Chino Basin groundwater management can have multiple ramifications. An understanding of the realities of adaptive groundwater management in Chino Basin must be constructed out of a combination of influences and experiences. Chapter 2 provides an overview of Chino Basin and the Santa Ana River watershed as a physical system. Chapters 3, 4, and 5 explain the origins and development of water use, surface water development, water resource conflicts, and the emergence of management institutions in Chino Basin and the wider watershed. Chapter 6 details the adjudication and allocation of pumping rights in Chino Basin and the initial construction of the groundwater governance structure there. Chapter 7 focuses on the pre-adaptive management period that followed the basin adjudication. Chapter 8 describes the intense period of conflict that pitted Chino Basin groundwater users against one another and resulted in a major change to the governance structure. Chapter 9 reviews the beginnings of the adaptive groundwater management approach in Chino Basin. Chapters 10 through 14 focus on elements of the adaptive management program and how they have been designed, implemented, monitored, and revised over time. Chapter 15 returns to some of the issues raised in this chapter about adaptive management in light of the Chino Basin experience, in order to consider lessons from it as well as what lies in the foreseeable future. As Barbara Cosens and colleagues observed, although theoretical generalizations can be made, in actual practice adaptive management always and only emerges amid the details of specific contexts. Implementing and sustaining adaptive management “must proceed through the hard work of basin-by-basin assessment and reform” (Cosens et al., 2018: 154). Chino Basin’s experience with adaptive groundwater management is not presented here as a model and should not be taken as one. It is a lesson from one place about what adaptive groundwater management demands, as well as what it promises.

References Allen, C.R., & Gunderson, L.H. (2011). Pathology and failure in the design and implementation of adaptive management. Journal of Environmental Management, 92(5), 1379-1384. Beunen, R., Patterson, J., & Van Assche, K. (2017). Governing for resilience: the role of institutional work. Current Opinion in Environmental Sustainability, 28, 10–16. Biber, E. (2013). Adaptive management and the future of environmental law. Akron Law Review, 46(4), 933–962. Blomquist, W. (2020). Beneath the surface  – Complexities and groundwater policy-making. Oxford Review of Economic Policy, 36(1), 154–170. Blomquist, W. A., & Schroeder, N. J. S. (2019). Seeing polycentrically: Examining governance situations using a polycentricity lens. In A.  Thiel, W.  A. Blomquist, & D.  Garrick (Eds.), Governing complexity: Analyzing and applying polycentricity (pp.  45–64). New  York: Cambridge University Press. Chaffin, B.C., Gosnell, H., & Cosens, B. A. (2014) A decade of adaptive governance scholarship: Synthesis and future directions. Ecology and Society, 19(3), Article 56.

References

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Clarvis, M. H., Allan, A., & Hannah, D. M. (2014). Water, resilience and the law: From general concepts and governance design principles to actionable mechanisms. Environmental Science and Policy, 43, 98–110. Cosens, B., Craig, R. K., Hirsch, S., Arnold, C. A., Benson, M. H., DeCaro, D., et al. (2018). Legal pathways to adaptive governance in water basins in North America and Australia. In B. Cosens & L.  Gunderson (Eds.), Practical panarchy for adaptive water governance: Linking law to social-ecological resilience (pp. 151–165). Cham, Switzerland: Springer. Doremus, H., & Hanemann, M. (2008). The challenges of dynamic water management in the American West. UCLA Journal of Environmental Law and Policy, 26(1), 55–75. Hoffman, C., & Zellmer, S. (2013). Assessing institutional ability to support adaptive, integrated water resources management. Nebraska Law Review, 91(4), 805–863. Holling, C. S. (Ed.). (1978). Adaptive environmental assessment and management. New York: Wiley. Holling, C. S., & Meffe, G. K. (1996). Command and control and the pathology of natural resource management. Conservation Biology, 10(2), 328–337. Howard, K.  W. F. (2015). Sustainable cities and the groundwater governance challenge. Environmental Earth Sciences, 73(6), 2543–2554. Lee, K. N. (1999). Appraising adaptive management. Conservation Ecology, 3(2), Article 3. Lopez Porras, G., Stringer, L.  C., & Quinn, C.  H. (2020). Seeking common ground in dryland systems: Steps toward adaptive water governance. Water, 12(2), Article 498. McLain, R. J., & Lee, R. G. (1996). Adaptive management: Promises and pitfalls. Environmental Management, 20(4), 437–448. Medema, W., McIntosh, B. S., & Jeffrey, P. J. (2008). From premise to practice: A critical assessment of integrated water resources management and adaptive management approaches in the water sector. Ecology and Society, 13(2), Article 29. Megdal, S. B., Zuniga Teran, A., Varady, R. G., Delano, N., Gerlak, A. K., & Vimont, E. T. (2018). Groundwater governance in the United States: A mosaic of approaches. In K.  G. Villholth, E. Lopez-Gunn, K. I. Conti, A. Garrido, & J. Van der Gun (Eds.), Advances in groundwater governance (pp. 483–509). Boca Raton, FL: CRC Press. Miller, K. A., Hamlet, A. F., & Kenney, D. S. (2016). Introduction: The context for western water policy and planning. In K. A. Miller, A. F. Hamlet, D. S. Kenney, & K. T. Redmond (Eds.), Water policy and planning in a variable and changing climate: Insights from the western United States (pp. 3–15). Boca Raton, FL: CRC Press. Ostrom, E. (2005). Understanding institutional diversity. Princeton, NJ: Princeton University Press. Ross, A., & Martinez-Santos, P. (2010). The challenge of groundwater governance: Case studies from Spain and Australia. Regional Environmental Change, 10, 299–310. Thomann, J. A., Werner, A. D., Irvine, D. J., & Currell, M. J. (2020). Adaptive management in groundwater management: A review of theory and application. Journal of Hydrology, 586, Article 124871. van Buuren, A. (2013). Knowledge for water governance: Trends, limits, and challenges. International Journal of Water Governance, 1(1&2), 157–175. Williams, B.  K. (2011). Adaptive management of natural resources  – Framework and issues. Journal of Environmental Management, 92(5), 1346–1353. Williams, B. K., & Brown, E. D. (2014). Adaptive management: From more talk to real action. Environmental Management, 53(2), 465–479. Wyborn, C., & Dovers, S. (2014). Prescribing adaptiveness in the agencies of the state. Global Environmental Change, 24, 5–7.

Chapter 2

The Natural Physical System of Chino Basin

Abstract  The Chino Basin in Southern California is part of the Santa Ana River watershed. This chapter describes the groundwater basin itself, which is fed by precipitation runoff from the adjacent mountains and overlying stream channels and contributes outflow to the Santa Ana River. The chapter also describes the river system, including areas upstream and downstream of Chino Basin. Although human activity has altered the natural physical system, especially during the past century, the fundamental elements of the basin’s inflow and outflow, its storage capacity, and its location within the river system and its relationship to the other streams and groundwater basins within the watershed, are essential to understanding the resource management opportunities and constraints of Chino Basin. Keywords  Chino Basin · Santa Ana River · Groundwater · Groundwater storage · Precipitation · California

This chapter situates the Chino Basin in its physical setting within southern California. It depicts the relationship of the groundwater basin to the rest of the Santa Ana River watershed, including the other groundwater basins that are interrelated with the watershed and with Chino Basin. It describes the natural sources of water inflow to the basin and outflow from it. These physical characteristics provided opportunities for certain groundwater management approaches while also constraining what could be done within Chino Basin as a consequence of its physical circumstances and relationships with adjacent and overlapping water resources.

2.1  The Santa Ana River and Its Watershed The Santa Ana River, a natural, non-navigable stream, is the largest coastal-area stream in southern California. The total drainage area and tributary system of the Santa Ana River, the Santa Ana River Watershed, covers approximately 2650 square

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_2

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2  The Natural Physical System of Chino Basin

Fig. 2.1  Map of the Santa Ana River Watershed. (Source: Orange County Water District)

miles in the four southern California counties of San Bernardino, Riverside, Los Angeles, and Orange (see Fig. 2.1). Today it is home to approximately 6 million people, living in 58 cities. The river's headwaters are in the San Bernardino Mountains in San Bernardino County, about 80 miles inland from the Pacific Ocean. The river originates in the confluence of a number of creeks that drain from the San Bernardino Mountains – Mill Creek, Lytle Creek, Warm Creek, City Creek, Cajon Creek, Twin Creek, and Plunge Creek. From this confluence, the Santa Ana River flows in a generally southwesterly direction through the San Bernardino Valley, and on through Riverside and Orange Counties to the Pacific Ocean. In the headwaters or confluence area, the Santa Ana River and its tributaries flow through or adjacent to the cities of Redlands, San Bernardino, and Colton. From there, the river travels past the City of Riverside and through the Riverside Narrows. Along the way, the river is additionally fed by Cucamonga Creek, Day and Deer Creeks, San Antonio Creek, and Chino Creek. Those streams rise in the southern slopes of the eastern San Gabriel Mountains. They traverse the land surface of the Chino Basin before reaching the Santa Ana River channel.1 Temescal Creek enters from the south, passing the City of Corona just before reaching the river.  Moreland, 1972. Also, Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016.

1

2.1  The Santa Ana River and Its Watershed

15

The river reaches the Santa Ana Canyon, between the Puente Hills and the Santa Ana Mountains, near the border of Riverside and Orange Counties. Below the Canyon, the river opens out into the Coastal Plain of Orange County. Ultimately it empties into the Pacific Ocean between Huntington Beach and Newport Beach. The Santa Ana River is 96 miles long from headwaters to mouth, with more than 700 miles of tributaries draining the watershed. The Santa Ana Canyon marks a division of the watershed into its Upper Area and Lower Area. All of the flow from the Upper Area of the Santa Ana River passes through the Canyon, giving the watershed the contours of a somewhat misproportioned hourglass. (The Upper Area is substantially larger than the Lower Area.) An important feature of the Santa Ana River watershed today is the Prado Dam, placed at the Santa Ana Canyon just north of Orange County, in the narrow portion of the hourglass. The dam was completed by the U.S. Army Corps of Engineers in 1941. Among the effects of the dam is to push Santa Ana River underflow to the surface and then channel the river through flood gates. During Prado Dam's construction, sheet steel piling was driven from the bottom of the bypasses of the dam to bedrock, cutting off all percolating water beneath the channel of the river in the Santa Ana Canyon. All water that leaves the watershed upstream from Prado Dam, must pass through the gates or bypasses of Prado Dam before continuing to flow through the canyon.2 There has been considerable variation in the Santa Ana River's flow over the years. In the late 1700s, for example, the journals of an early explorer recorded the Santa Ana River as being more than half a mile wide.3 On the other hand, only infrequently in the 20th century did the River actually flow above the ground over its entire 90-mile course from the mountains to the ocean. The river typically disappears at various points along its course, sinking underground and then surfacing again further downstream.4 However, there is usually surface flow between Riverside Narrows and the Santa Ana Canyon, because the channel is shallower between those two points and the water rises to the surface.5 Most of the streams that feed the river flow on the surface in the upper canyons where they originate; they then used to sink into the alluvial fans of the San Bernardino Valley or the Chino Basin and move toward the river as underground streams. Only during periods of abundant rainfall did surface runoff from the tributaries reach the river channel (Moreland, 1972: 9). More recently, the creeks that cross Chino Basin on their way to the river have been channelized and lined, so their flow is less likely to percolate underground and more likely to reach the river. The Santa Ana River watershed is not solely a surface water supply system. It includes a series of underground reservoirs or groundwater basins. The courses of

 French, 1972, p. G5; also Appellants’ Brief, Orange County Water District v. City of Riverside et al., 1958, pp. 7–9. 3  Orange County Water District Annual Report, June 1983. 4  Appellants’ brief, Orange County Water District v. City of Riverside et al., p. 6; Trager 1988, p. 44. 5  Appellants’ Brief, Orange County Water District v. City of Riverside et al., pp. 7–9. 2

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2  The Natural Physical System of Chino Basin

the Santa Ana River and its tributaries cross several underground barriers such as fault lines. Water collects upstream from these barriers, as it would with a surface dam, in underground reservoirs. In turn, subsurface flows extending from the surrounding mountains and hills feed the river. Over the Santa Ana River's course, it supplies and is supplied by nine underground basins of this sort, starting with the Mill Creek Basin at the headwaters, on through the San Bernardino, Colton, and Chino Basins, and finally to the Orange County Basin before reaching the Pacific Ocean (Moreland, 1972: 9).

2.2  The Chino Basin in the Santa Ana River Watershed In the Upper Area of the Santa Ana River watershed, bedrock and fault barriers separate the underground water into several basins. The most prominent barrier, the San Jacinto Fault (which is known locally as Bunker Hill Dike), coincides roughly with the channel of Lytle Creek, and divides the Upper Area into an eastern portion known as the Bunker Hill-San Timoteo area, and a western portion known as the Chino-Riverside area. Within both of these areas, other bedrock and underground barriers produce a set of groundwater basins.6 In the Chino-Riverside portion of the Upper Area, the largest groundwater basin is the Chino Basin. Chino Basin includes a surface area of approximately 230 square miles. By area and capacity, it is the largest groundwater basin in southern California. Five percent of the land surface of Chino Basin is in Los Angeles County, 15% in Riverside County, and the remaining 80% is in the West End of San Bernardino County.7 Most Chino Basin groundwater pumping has occurred in the Riverside County and San Bernardino County portions.8 Chino Basin is situated directly north of the Prado Dam/Santa Ana Canyon division in the Santa Ana River watershed. The Basin stretches from the foot of the San Gabriel Mountains to the bottom lands of the Santa Ana River (Koehler, 1983: 5). The crest of the San Gabriel Mountains north of the Chino Basin rises to an altitude of about 10,000 feet. The altitude of the Chino Basin itself ranges from 2000 to 2500 feet above sea level at the foot of the mountains down to about 500 feet above sea level near the Santa Ana River. The land surface of Chino Basin thus presents the appearance of a broad and gently southward-sloping plain, narrowing toward the Santa Ana Canyon at its southern tip. The geologic boundaries of the Chino Basin can be seen in Fig.  2.2. Those boundaries are, in clockwise order from the northwest: the San Jose Fault and the  Moreland, 1972, p. 10. California Department of Water Resources (1970) Meeting Water Demands in the Chino-Riverside Area. Appendix A: Water Supply. Bulletin No. 104-3. Sacramento, CA: State Printing Office, pp. 5–11. 7  Chino Basin Watermaster (1978) Annual Report of the Chino Basin Watermaster for the 1977–78 Water Year. Rancho Cucamonga, CA: Chino Basin Municipal Water District, p. 3. 8  Peters interview, July 25, 1988. 6

2.2  The Chino Basin in the Santa Ana River Watershed

17

Fig. 2.2  Chino basin boundaries and geologic features. (Source: Chino Basin Watermaster)

Pomona Valley, the Cucamonga Fault and Cucamonga Basin, the Rialto-Colton Fault and the Rialto-Colton Basins, the Bloomington Divide, the Jurupa Mountains and the Santa Ana River, and the Chino and Puente Hills.9 The San Jose Fault is a northeast-trending bedrock high between the San Jose Hills and the San Gabriel Mountains along the western edges of the cities of Pomona and Claremont. San Antonio Creek passes from north to south just to the east of the San Jose Fault. The Fault operates as an imperfect groundwater divide and is the primary separation between the Chino Basin on the east and the Pomona Valley, Puente Basin, and Main San Gabriel Basin on the west.10 To the east of the San Jose Fault, the Cucamonga Fault trends almost directly eastward along the front of the eastern San Gabriel Mountains. Between the Cucamonga Fault and the U-shaped Red Hill fault (or Red Hill Dike, as it is known locally) lies a smaller, 15-square mile groundwater basin known as Cucamonga Basin. The Red Hill fault forms a common boundary between the Cucamonga Basin 9  Negotiating Committee on a Chino Basin Management Plan (1971) Working Memorandum No. 25, p. 63. 10  California Department of Water Resources (1966) Planned Utilization of Ground Water Basins, San Gabriel Valley. Appendix A: Geohydrology. Bulletin No. 104-2. Sacramento, CA: State Printing Office, p. 57.

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2  The Natural Physical System of Chino Basin

and the Chino Basin along the Chino Basin's north side.11 The Cucamonga Basin and Chino Basin are closely interrelated hydrogeologically, and have been managed together. East of the Cucamonga Basin, the northern boundary of the Chino Basin is formed by the Cucamonga Fault, directly at the base of the San Gabriel Mountains. At San Sevaine Canyon, this northern boundary intersects the Rialto-Colton Fault.12 The Rialto-Colton Fault trends southeasterly from San Sevaine Canyon to near Slover Mountain on the far eastern end of Chino Basin. The Rialto-Colton basins lie to the east of the Fault. Another imperfect groundwater divide known as the Bloomington Divide extends southerly a short distance between the Rialto-Colton Fault and the Jurupa Mountains.13 Southwesterly from the Bloomington Divide, the Chino Basin boundary extends along the northern side of the Jurupa Mountains. These Mountains act as a barrier to the southward movement of water from Chino Basin, directing subsurface water westerly toward the central portion of the basin.14 West of the Jurupa Mountains, the remainder of the southeastern boundary of Chino Basin is the Santa Ana River channel. The River channel separates the Chino Basin on the north from the Temescal Basin to the south. The Chino and Temescal basins contribute water to the Santa Ana River from opposite sides along this part of the channel.15 This portion of the Chino Basin boundary terminates at Prado Dam, which constitutes the southernmost tip of the Basin and divides the Chino Basin from the Orange County Basin on the other side of Santa Ana Canyon. The southwestern boundary of the Chino Basin, extending northwesterly from Prado Dam, consists of the Chino Fault and the Chino and Puente Hills.16 The hills stretch along the western side of the Chino Fault. The northern end of the Chino Fault extends to the southern flank of the San Jose Hills in the far western portion of the Chino Basin, which reach northerly to the San Jose Fault.17

 Negotiating Committee on a Chino Basin Management Plan (1971) Working Memorandum No. 25, p. 64. 12  Ibid. 13  Ibid., p. 65. 14  Ibid. 15  Ibid. 16  Orange County Water District Annual Report, March 1975; also Crooke and Toups, 1961, pp. 1–2. 17  Negotiating Committee on a Chino Basin Management Plan, 1971, Working Memo No. 25, p. 66; see also California Department of Water Resources, 1970, pp. 5–11. 11

2.3  Natural Water Supplies of Chino Basin

19

2.3  Natural Water Supplies of Chino Basin Chino Basin receives its natural water supply from precipitation, surface inflow, and subsurface inflow from adjacent basins (Koehler, 1983: 12). It also discharges water to adjacent basins by surface and subsurface outflow. Long-term average precipitation across the entire Chino Basin is 16.45 inches per year.18 Average annual precipitation ranges from 12 inches in the southern part of the basin near Prado Dam to 25 inches in the northern part near the base of the San Gabriel Mountains (Koehler, 1983: 11). (Rainfall in the mountains averages nearly 40 inches.) Near the center of Chino Basin, at Ontario, the average is 16.21 inches per year.19 Approximately 75% of annual precipitation occurs during the winter months, December through March. Precipitation from year to year is unpredictable, however, and annual rainfall amounts in Chino Basin range from less than 10 inches in dry years to more than 35 inches in especially wet years. As is the case throughout southern California, the Chino Basin is given to extended wet and dry cycles. For example, during the drought that lasted from 2012 through 2016, annual precipitation was just 8.18 inches per year, half the long-term average.20 As the discussion of the Santa Ana River watershed indicated, several surface water streams draining the southern face of the eastern San Gabriel Mountains enter and cross the Chino Basin, contributing to the water supply. The Chino Basin portion of the Santa Ana River watershed is directly fed by five major streams from the mountain front. San Antonio Creek, which becomes Chino Creek, traverses the western portion of Chino Basin from north to south. Cucamonga Creek travels from north to south across the central portion of the Basin. Day, Deer, and East Etiwanda Creeks proceed southeasterly across the eastern portion of the Basin. As mentioned above, in the past and in their natural condition, these streams would deposit their waters upon the broad alluvial plain of the Chino Basin and typically disappear from the land surface, except in periods of extremely abundant precipitation and runoff.21 The Chino Basin is underlain by water-bearing sediments that absorb, retain, and transmit the waters collected over time from the percolation of precipitation and surface inflow. Older and Recent alluvial deposits constitute the major water-­bearing units of the Basin. Figure 2.3 shows the direction of groundwater movement within the basin. Groundwater generally follows the north-to-south direction of the creeks and the slope of the overlying land.

 Wildermuth Environmental, Inc., Annual Report of the Prado Basin Habitat Sustainability Committee – Water Year 2015/2016. 19  California Department of Water Resources 1970, p. 30. 20  Wildermuth Environmental Inc., Annual Report of the Prado Basin Habitat Sustainability Committee – Water Year 2015/2016. 21  California Department of Water Resources (1959) Santa Ana River Investigation. Bulletin No. 15. Sacramento, CA: State Printing Office, p. 4. 18

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2  The Natural Physical System of Chino Basin

Fig. 2.3  Groundwater movement in Chino Basin. (Source: French, 1972)

Chino Basin is an especially capacious groundwater basin. The total water storage capacity of Chino Basin has been estimated at times from 11,000,000 to 14,000,000 acre-feet,22 with storage capacity within 100 feet of the water table (i.e., "usable" storage capacity) of 1,232,000 acre-feet.23 Despite decades of overpumping, the groundwater in storage in the Chino Basin as of 1980 was still estimated to be about 8 million acre-feet, and the storage potential of the basin was characterized in the early 1970s as “nearly astronomical” (Moreland, 1972). More recent (2019) estimates of groundwater in storage in Chino Basin placed it at 5,935,000 acre-­ feet,24 and the storage potential is now considered to be more modest due to the recognition of negative effects that can occur when the groundwater in storage grows too large. Depth to groundwater in Chino Basin generally ranges from less than 15 feet (fairly close to the land surface) at the southernmost portion of the basin to over 500 feet in parts of the northern portion of the Basin.25 Groundwater movement within the Basin is generally from north to south (Fig. 2.3) following the surface terrain, with a steeper groundwater gradient in the northern portion of the basin than in the southern portion (Koehler, 1983: 12). Along its boundaries, Chino Basin exchanges subsurface water with adjacent basins. Subsurface inflow is received from the Rialto-Colton basins across the  Peters interview, July 25, 1988.  California Department of Water Resources 1959, p. 34. 24  Chino Basin Watermaster, Final 2020 Storage Management Plan White Paper, July 18, 2019. 25  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2018. 22 23

References

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Rialto-Colton Fault and the Bloomington Divide on the eastern side of Chino Basin.26 Subsurface water also flows across the Red Hill fault from the Cucamonga Basin into the Chino Basin.27 At the western end of Chino Basin, subsurface water is exchanged across the San Jose Fault. At times, studies have found subsurface flow from the Chino Basin across this divide toward the San Gabriel Valley.28 At other times studies have found subsurface flow from the adjacent basins into the Chino Basin in this same area.29 The relative water levels on each side of the divide, which are affected by both natural water supply conditions and by pumping patterns and artificial recharge, determine the direction of the subsurface water movement. Groundwater also moves out of the Chino Basin in small amounts through a gap between the Puente and San Jose Hills.30 Surface water also exits the Chino Basin. Some surface water exits the northwestern edge of the Basin in the Pomona-Claremont area. Some also leaves the basin across the San Jacinto Fault in the Lytle Creek area.31 By far, most of the surface water exiting Chino Basin crosses into the Lower Area of the Santa Ana River watershed by way of the Santa Ana River passing through Prado Dam as described above. The Chino Basin receives, stores, and transmits waters in the Santa Ana River watershed. It is situated at a crucial juncture in the watershed, lying just above the dividing point between the Upper and Lower Areas. Given the physical properties of the resource, its enormous capacity, and its critical location within the watershed, water development and management in the Chino Basin have had a long and frequently contentious history.

References French, J. J. (1972). Ground-water outflow from Chino Basin, Upper Santa Ana Valley, Southern California (U.S.  Geological Survey Water-Supply Paper 1999-G). Washington, DC: U.S. Government Printing Office. Koehler, J. H. (1983). Artificial recharge in the northern part of Chino Ground-Water Basin, Upper Santa Ana Valley, California (Water-Resources Investigations Report 82-4122). Sacramento, CA: U.S. Geological Survey. Moreland, J. A. (1972). Artificial recharge in the Upper Santa Ana Valley, Southern California (U.S. Geological Survey Open-File Report). Menlo Park, CA: United States Geological Survey.

 Negotiating Committee on a Chino Basin Management Plan (1971) Working Mem No. 26, p. 70.  Ibid., p. 69. 28  California Department of Water Resources 1966, p. 56; also, California Department of Water Resources 1970, p. 48. 29  Negotiating Committee on a Chino Basin Management Plan 1971, Working Memo No. 26, p. 68. 30  California Department of Water Resources 1966, p. 57. 31  California Department of Water Resources 1959, p. 22. 26 27

Chapter 3

The Development of Water Supplies and Water Conservation

Abstract  People have used Chino Basin groundwater and the surface streams in the basin for many years. The primary early use was for agriculture (including ranching as well as crop cultivation) and household supply. Over time, as development of the area proceeded and water use grew, the first efforts to enhance and protect the basin’s water resources were initiated, which included the capture and retention of stream flows to encourage groundwater replenishment. Multiple water companies, water agencies, and water associations were formed during the early 1900s and many participated in these conservation and protection efforts. Those efforts had ramifications for downstream users outside Chino Basin as well. Communities and individual users organized the Chino Basin Protective Association for several purposes but especially to guard against downstream efforts to limit Chino Basin water production and water conservation activities. This chapter traces the growth of developed water use in the basin from the 1800s into the twentieth century, and the formation of the Protective Association. Keywords  Chino Basin · California · Pomona · Orange County · Santa Ana River · Chino Basin Protective Association · Recharge

The historical context of contemporary Chino Basin groundwater management begins with early development of agriculture in the basin and the first attempts by water users to try to protect the basin’s water resources from perceived threats in all surrounding directions. The dominance of agriculture on the Chino Basin landscape is documented in photographs from the turn of the twentieth century such as Fig. 3.1. The photograph was from the basin floor facing toward the mountains, with citrus groves extending as far as the camera can see. Row crops and vineyards were prominent during this period as well. The development of irrigated agriculture in Chino Basin spurred efforts to conserve and protect water supplies. The meanings associated with “conservation” and “protection” have changed since the early 1900s, but those early meanings still have some effect on water users’ perceptions of what water resource management entails. The establishment of the Chino Basin Protective Association during this period also

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_3

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3  The Development of Water Supplies and Water Conservation

Fig. 3.1  Citrus Grove in Chino Basin c. 1900. (Source: California Historical Society Collection, University of Southern California)

presages the development of groundwater governance and management in the basin as a combination of private and public sector entities.

3.1  Early Development, 1769–1880 Artifacts discovered in the Santa Ana River watershed suggest that the area may have seen indigenous inhabitation as early as 5,500 BCE. However, there is no evidence that any sustained form of agriculture developed in the area until the arrival of the Spanish in the late 1700s CE (Scott, 1977: 8). The Portola expedition into southern California camped in the Santa Ana River valley on St. Anne's Day, July 28, 1769, and named the river and the valley in honor of St. Anne (Trager, 1988: 45). That encampment was in the Lower Area of the river somewhere in what is now Orange County. The first recorded Spanish encampment in Chino Basin was on March 23, 1776, when Francisco Garces’ expedition arrived at Cucamonga Creek and Red Hill after traversing the Mojave Desert, crossing the San Bernardino Mountains at Sawpit Canyon, and traveling along the foothills of the San Gabriel Mountains.1 The name for the creek and its basin, Cucamonga, was adapted from an indigenous name Cocamungo, meaning, appropriately, “sandy place.”2  San Bernardino County Flood Control District (1976) Cucamonga Creek after 200 Years: 1776–1976. San Bernardino, CA: San Bernardino County Flood Control District, p. 6. 2  Ibid. 1

3.2  Water Development and Water Conservation, 1880–1932

25

The first irrigation diversion from the Santa Ana River was made by Jose Antonio Yorba and Juan Pablo Peralta in 1810 or 1811. Irrigation remained scattered and small-scale until the establishment of ranchos during the period of Mexican possession of California, after 1821 (Scott, 1977). The San Jose Rancho, at the northwest edge of Chino Basin along the west side of San Antonio Creek, was established in 1837. Tiburcio Tapio established the Cucamonga Rancho, in the northern part of Chino Basin, in 1839. Rancho Santa Ana del Chino, which covered most of the central portion of the Chino Basin, was established in 1841 (Scott, 1977). The rancho grantees primarily raised cattle, horses, and sheep, irrigating only small plots of feed grain for their livestock and fruit crops for household use. After the acquisition of California by the United States in 1848, the ranchos were increasingly broken up and sold to the migrating Americans. For example, the Tapio rancho, Cucamonga Rancho, was sold to John Rains in 1858. Rains’ widow then sold part of the holding to the Cucamonga Land Company in 1870.3 The breakup of the ranchos and the arrival of the Americans is associated with the wider spread of irrigation and increased water use in the area (Scott, 1977). Most early irrigation used surface water. However, even before 1870 water users realized that a pipe driven into the ground in some of the wetter low-lying areas produced flowing water. The availability of a readily-accessible groundwater supply grew more prominent in the area’s development in the agricultural boom of the late 1800s (Troxell, 1957: 35). The navel orange tree was introduced to the Santa Ana River basin from Brazil in 1873. With the discovery that the local environment favored the growth of these trees, agricultural emphasis shifted from the raising of grain, vines, and deciduous fruit trees to the cultivation of citrus groves. The arrival of the transcontinental railroads later in the 1870s opened western citrus production to eastern markets, enhancing the prosperity of the area’s agricultural economy.4 That prosperity encouraged the growth of population in the Santa Ana River watershed, more or less steadily from the mid-1800s through the 1930s.5 Citrus production remained a mainstay of the local economy for a long time. As late as 1950, the citrus production of the Santa Ana River area accounted for 60% of California’s production of these crops that were so important to the state’s economic development.6

3.2  Water Development and Water Conservation, 1880–1932 The importance of water supply to the area’s continued development prompted a parallel set of activities in the Upper Santa Ana River area. The first set of activities consisted of water development efforts. An extensive system of irrigation ditches and a large number of land and water development companies filled the upper Santa Ana River area by

 San Bernardino County Flood Control District , 1976, pp. 7–8.  California Department of Water Resources, 1959, p. 48. 5  Ibid., p. 7. 6  Ibid. 3 4

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3  The Development of Water Supplies and Water Conservation

1900, and competition for water had already become intense (Scott, 1977: 92). There was an epic battle, for example, during 1900–1910 over impoundments and diversions from San Antonio Creek and land development on each side of the creek (the location of present-day Pomona, with Upland to the east and Claremont to the west).7 The second set of activities consisted of the early beginnings of water conservation and regulation, a recognition that more water conflicts were virtually certain as the region developed. Even when agricultural development in the Upper Santa Ana Area was beginning in the middle decades of the 1800s, drought years stimulated interest in water conservation and allocation (Scott, 1977: 221). The San Bernardino County Board of Water Commissioners was established, and the first commissioners elected, in 1864 (Scott, 1977: 16). That Board began almost immediately to hear and resolve water disputes. More water institutions emerged. Irrigation districts were formed in the area quickly after the passage of the Wright Act in 1889. Rialto Irrigation District and Grapeland Irrigation District, each including lands in the eastern portion of Chino Basin near the river, were organized as Wright Act districts in 1890. Just east of Chino Basin, the East Riverside Irrigation District began diverting Lytle Creek storm flows into a series of ditches across the lower reach of the Lytle Creek fan, the earliest recorded attempts at increasing the water supply by the infiltration of runoff (Moreland, 1972: 11). Other early water-spreading and conservation activities followed soon thereafter, spurred by the series of drought years that plagued southern California from 1895 to 1904. Water users along San Antonio Creek in the northwest portion of Chino Basin began to spread waters from the Creek in 1895, subsequently organizing the Pomona Valley Protective Association to oversee the activity.8 In the lower part of the Santa Ana River fan, the Gage Canal Company began similar operations in 1903. Several water companies including East Lugonia Mutual, San Antonio, Etiwanda, Cucamonga, and Fontana Union became actively engaged in spreading floodwater for artificial recharge at about the same time (Scott, 1977: 222). Water spreading began on Cucamonga Creek in 1908.9 By then, the water resources of the Upper Area and their development had already become the subject of studies and reports. Wm. Ham Hall completed his study of irrigation development in the Santa Ana River watershed in 1889. The U.S. Geological Survey (USGS) established measurements on many of the streams of the Santa Ana River watershed before 1900.10 J.B. Lippincott published a study of water development in the San Bernardino, Colton, and Riverside area for USGS in 1902 (Lippincott, 1902a, 1902b), and W.C. Mendenhall published a report on the hydrology of the San Bernardino Valley for USGS in 1905.

7  Pomona Land and Water Co. et al v. San Antonio Water Co. et al. 152 Cal. 618, 93 P. 881 (1908). Hackenberger & Miller, 2020. 8  See Hackenberger and Miller (2020) for a highly readable account of the development of the Pomona Valley Protective Association. 9  San Bernardino County Flood Control District, 1976, p. 12. 10  Ibid., p. 8.

3.2  Water Development and Water Conservation, 1880–1932

27

By the close of the turn-of-the-century drought, the three counties that contained most of the Santa Ana River watershed (Orange, Riverside, and San Bernardino counties) were attending to the issues of water supply and water conservation. The counties formed the Tri-Counties Reforestation Committee in 1907. That Committee's purpose was to seek the withdrawal from settlement of 960 acres of Federal land downstream from the mouth of Santa Ana Canyon, with the land to be used for water spreading. The request was granted by Congress in February 1909 (Scott, 1977: 221). Four months later, in June 1909, a successor organization of the three counties, the Water Conservation Association, was formed to attempt water conservation on a basin-wide scale. This new organization authorized the construction of a diversion dam at the mouth of Santa Ana Canyon, with a ditch leading from the dam to the water-spreading area (Skrove, 1989). Spreading operations began in 1911. The Water Conservation Association was the largest of several such organizations in the Santa Ana River watershed. To undertake the multiple functions of water development, water distribution, and water conservation, some private land and water development companies in the area also began to consolidate or undertake joint ventures. In the Upper Area, the Fontana Union Water Company combined the interests of the Fontana Land and Development Company, the Fontana Land Company, the Fontana Water Company, and the Orchard Mutual Company in 1924.11 In 1925, the San Antonio Water Company and the Cucamonga Water Company, with support from the City of Upland, jointly constructed a rock diagonal wall and two rock cross walls in Cucamonga Creek, which would serve both to confine flood waters and increase their infiltration into the underground water supply.12 By 1930 there were several flood control and water conservation facilities in the Santa Ana River watershed. Associations of water users continued to form and grow. As of January 1932, in addition to the Water Conservation Association and the water companies, there were the Chino Basin Protective Association, Pomona Valley Protective Association, Cucamonga Conservation Association, Lytle Creek Water Users Association, Riverside Basin Water Users Council, Riverside County Land Owners Council, and the San Bernardino Valley Conservancy District.13 The growth of economic enterprise occurred hand-in-hand with the establishment of organizations for collective action. Studies of the water resources and development of the area also continued. In 1925, the State of California authorized a Santa Ana River investigation and appropriated $25,000 for the study, supplemented in 1928 with an appropriation of $40,000.14 This state investigation resulted in Bulletin No. 19 of the Department of

 In the Lower Area, the Anaheim Union Water Company grew in similar fashion.  San Bernardino County Flood Control District, 1976, p. 12. 13  California Department of Public Works, Division of Water Resources (1932) South Coastal Basin Investigation: Records of Ground Water Levels at Wells. Bulletin No. 39. Sacramento, CA: State Printing Office, p. 5. 14  San Bernardino County Flood Control District, 1976, p. 12. 11 12

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3  The Development of Water Supplies and Water Conservation

Public Works’ Division of Engineering and Irrigation, Santa Ana Investigation, published in 1928.15 In 1929, the California Legislature appropriated $390,000 for an investigation of the conservation, development and use of the water resources of southern California, including the Santa Ana and Mojave Rivers. From this larger endeavor came Division of Water Resources Bulletin No. 31, Santa Ana River Basin, in 1930, Bulletin No. 33, Rainfall Penetration and Consumptive Use of Water in Santa Ana River Valley and Coastal Plain, in 1930, Bulletin No. 39, South Coastal Basin Investigation: Records of Ground Levels at Wells, in 1932,16 and Bulletin No. 45, South Coastal Basin Investigation, in 1934.17

3.3  The Chino Basin Protective Association One of the many water user associations listed above was the Chino Basin Protective Association. The purposes of the Association reflected not only an interest in maximizing the conservation of water supplies, but also a growing sense of competition for water resources in the watershed, competition that would soon become open conflict. The Chino Basin Protective Association was organized on February 9, 1931. Its original membership was composed of 274 individuals and 9 corporations, representing 25,000 acres of land. Their original constitution and by-laws stated their purposes forthrightly: to combine to fight off any attempts by “outsiders” to encroach upon the water supplies and water rights of Chino Basin users. The members stated their agreement that, although they could not be sure of the precise boundaries of the Chino Basin, they knew that it existed, they knew that they relied upon its waters, and they shared a common purpose in defending it: there exists in San Bernardino, Riverside, and Los Angeles Counties, an area of land containing subterranean water commonly known as the ‘Chino Basin’, and at the time of entering into this agreement the undersigned are not aware of the precise location of the boundaries of said basin, but expect in the course of time to cause engineering investigation to be made in order to ascertain among other things, the approximate limits of said basin, and in the meantime, the undersigned deem it expedient for the purpose of this agreement only, to designate a certain area of land as the ‘Chino Basin’, which area embraces certain lands owned or served with water by the undersigned respectively, and it is deemed desirable to enter into some arrangement with the object of protecting the waters contained in such area from any unlawful or unwarranted exportation therefrom, and also for obtaining

 California, State of, Department of Public Works, Division of Engineering and Irrigation (1928) Santa Ana Investigation. Bulletin No. 19. Sacramento, CA: State Printing Office. 16  California Department of Public Works, Division of Water Resources (1932) South Coastal Basin Investigation: Records of Ground Water Levels at Wells. Bulletin No. 39. Sacramento, CA: State Printing Office. 17  California, State of, Department of Public Works, Division of Water Resources (1934) Geology and Ground-Water Storage Capacity of Valley Fill, South Coastal Basin Investigation. Bulletin No. 45. Sacramento, CA: State Printing Office. 15

3.3  The Chino Basin Protective Association

29

data relating to the existence and manifestation of water and the fluctuation of the water levels therein and of studying the general water conditions therein.... [T]he undersigned are desirous of uniting... and organizing an unincorporated, non-­ profit association for the purpose of carrying out said objects, including the protection or defense of the water rights of the undersigned in the courts and elsewhere in and to the underground water within or underlying the lands hereinafter designated ‘Chino Basin’.18

There followed a fairly detailed description of the assumed boundaries of the Chino Basin, with a provision that the designated boundaries could be altered by vote or written consent of members representing two-thirds or more of the total acreage included in the Association.19 The members of the Association further agreed upon: (a) the governance of the Association by a board of nine directors elected annually from the members of the Association (provided that no members delinquent in dues could vote, no corporation could be represented by more than one Director, and that the Board of Directors may call special meetings and must do so when requested to do so by members representing 20% or more of the acreage in the Association);20 (b) the day-to-day administration of the Association by officers consisting of a President, Vice-President, Secretary, and Treasurer, appointed by the Board and serving without salary (except the Secretary, who would receive a salary set by the Board); (c) qualifications for membership in the Association (owners of overlying land, owners of water rights appurtenant to overlying land, and individuals or organizations serving water to overlying lands of the Basin, upon application to and approval of the Board of Directors);21 (d) their mutual obligation to contribute to a common fund to be used by the Board of Directors for the purposes of the Association, with dues not to exceed 10 cents per acre unless approved by an affirmative vote of members representing two-thirds or more of the acreage in the Association;22 (e) their mutual obligation to report their water production monthly to the Association, with the provision that any member may inspect any other member's reports (including all data and computations made in arriving at that report), and with each party agreeing to allow the Board of Directors to obtain records from the gas or electric companies concerning power consumption with which to verify production statements;23 (f) authorization of the Board of Directors to “prosecute and defend all litigation concerning said association, and otherwise perform all acts and take all measures necessary to defend its operations and the rights of the individuals and

 Chino Basin Protective Association (1930) Agreement and By-Laws, p. 1, italics added.  Ibid., p. 4. 20  Ibid., pp. 2–8. 21  Ibid., p. 15. 22  Ibid., pp. 1–4. 23  Ibid., p. 6. 18 19

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3  The Development of Water Supplies and Water Conservation

corporations in said basin, in the courts and otherwise, against trespassers and invaders of the said rights and invaders of the underground and surface water within the ‘Chino Basin,’”24 provided that the initiation of litigation requires an affirmative vote of members representing two-thirds of the acreage in the Association;25 (g) the establishment of an office for the Association, provided that it be located in San Bernardino County;26 and (h) the constitution and by-laws becoming effective when signed by persons or corporations representing an aggregate of 25,000 acres owned or served with water within the basin.27 The first attempt at Chino Basin governance was underway. By the end of 1931, an engineer had been chosen for the Association: J.R.  Shoemaker was engaged as Engineer for the Chino Basin Protective Association and for the Pomona Valley Protective Association.28

References California Department of Public Works, Division of Water Resources. (1932). South Coastal Basin investigation: Records of ground water levels at wells (Bulletin No. 39). Sacramento: State Printing Office. California Department of Water Resources. (1959). Santa Ana River investigation (Bulletin No. 15). Sacramento: State Printing Office. Hackenberger, B., & Miller, C. (2020). Watershed politics: Groundwater management and resource conservation in Southern California’s Pomona Valley. Journal of Urban History, 46(1), 50–62. Lippincott, J. B. (1902a). Development and application of water near San Bernardino, Colton, and Riverside, California (Part 1. U.S. Geological Survey Water-Supply Paper No. 59). Lippincott, J. B. (1902b). Development and application of water near San Bernardino, Colton, and Riverside, California (Part 2. U.S. Geological Survey Water-Supply Paper No. 60). Moreland, J. A. (1972). Artificial Recharge in the Upper Santa Ana Valley, Southern California (U.S. Geological Survey Open-File Report). Menlo Park, CA: United States Geological Survey. San Bernardino County Flood Control District. (1976). Cucamonga Creek after 200 years: 1776–1976. San Bernardino, CA: San Bernardino County Flood Control District. Scott, M.  B. (1977). Development of water facilities in the Santa Ana River basin, 1810–1968 (U.S. Geological Survey Open-File Report 77-398). Menlo Park, CA: U.S. Geological Survey. Skrove, T. (1989). The wonders, wages and woes of wellwater. Aqueduct, 55(1). Trager, S. M. (1988). Emerging forums for groundwater dispute resolution in California: A glimpse at the second generation of groundwater issues and how agencies work towards resolution. Pacific Law Journal, 20(1), 31–74. Troxell, H.  C. (1957). Water resources of Southern California, with special reference to the drought of 1944-51 (U.S.  Geological Survey Water-Supply Paper 1366). Washington, DC: U.S. Government Printing Office.

 Ibid., p. 9.  Ibid., p. 5. 26  Ibid., p. 12. 27  Ibid., p. 7. 28  California Department of Public Works, 1932, p. 6. 24 25

Chapter 4

Upstream-Downstream Conflicts, 1930–1960

Abstract Conflict and compromise with downstream water users in Orange County, California, has been a defining characteristic of and shaping influence on groundwater use and management in Chino Basin. The period from the 1930s through the 1950s described in this chapter featured recurring litigation with Orange County interests, which spurred further organization and collaboration among Chino Basin water users including the formation of numerous water districts. Groundwater reliance in Chino Basin intensified, which contributed to the beginnings of groundwater overdraft there. By the mid-1900s, studies by the California Department of Water Resources sharpened water users’ understanding of what was and was not possible in terms of the development and use of local supplies and contributed to the start of imported water use in the Santa Ana River watershed. Keywords  California · Chino Basin · Santa Ana River · Water districts · Water litigation · Imported water · Orange County · Metropolitan Water District of Southern California (MWD)

As the stated purposes of the Chino Basin Protective Association reflect, the focus of water users’ organizations in the Santa Ana River watershed in 1931 had shifted from the development and conservation of water supplies to the protection of water rights. Lines were beginning to be drawn. Downstream, the Orange County Farm Bureau wrote to state legislators requesting the formation of a water district in their area “to look out for the question of replenishing the basin, conservation of the waste, and questions of that nature” (Trager, 1988: 45–46). Conflict and compromise with downstream water users in Orange County has been a defining characteristic of and shaping influence on groundwater use and management in Chino Basin. As described in Chapter 2, groundwater supplies in Chino Basin are interconnected with the surface flows of the Santa Ana River and its tributaries, and after those surface flows exit Chino Basin they represent the primary source of local surface water in Orange County. Fending off litigation in the 1930s from Orange County interests, led by the massive Irvine Ranch, became a

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_4

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4  Upstream-Downstream Conflicts, 1930–1960

cause for organization and collaboration among water users in Chino Basin. At the same time, the prospect of having to let more river water flow to Orange County led to intensification of groundwater reliance in Chino Basin and contributed to the beginnings of groundwater overdraft there. Studies by the California Department of Water Resources enhanced the information held by water users in the Santa Ana River watershed, sharpening their understanding of what was and was not possible in terms of the development and use of local supplies. An extended dry-weather period commenced in the mid-1940s and persisted through the 1950s, interrupted only by occasional wet years. During that period a second round of litigation was initiated by downstream users in Orange County. The combination of these events and processes – greater awareness of the limits of local supplies and greater pressure to maintain outflow to downstream users – stimulated a period of public water district formation, largely for purposes of securing access to imported water supplies from the Colorado River (and later, from northern California). These public water districts remain important parts of the institutional landscape of water resource management in Chino Basin, and imported water supplies were a key component of groundwater management in the basin later.

4.1  T  he Water Conservation Association and the Emergence of Conflict The first open conflict in the Santa Ana River watershed, between the Upper Area and the Lower Area, grew out of the water conservation activities that had been assembled so rapidly and on such a widespread scale during the 1890–1930 period covered in the preceding chapter. Somewhat ironically, it was the efforts of the three-county organization that had been established to bring basin-wide water conservation to the Santa Ana River area that prompted the conflict. Initially, the water spreading operations of the Water Conservation Association (as well as the numerous other water-spreading activities occurring in the Upper Area) coincided with a cycle of above-average precipitation from 1904 to 1922. The combination of greater precipitation and the water conservation activities produced a general rise in water levels throughout the area (Moreland, 1972: 12). However, a new cycle of dry years began in 1923 and lasted to the mid-1930s. Water levels declined despite the efforts to capture and retain water supplies when they were available. The first response from the Water Conservation Association to the changing water supply conditions of the 1920s was to expand its operations. In 1929 the Association expanded its water spreading facilities on the Santa Ana River at a cost of $60,000, $20,000 from each county. Nevertheless, water levels continued to decline. The next proposal to expand the Association’s water spreading activities brought the beginning of upstream-downstream conflict to the watershed.

4.1  The Water Conservation Association and the Emergence of Conflict

33

The increasing impoundment of water upstream concerned the downstream water users in the Lower Area of the Santa Ana River watershed. Those concerns were aggravated by the paucity of natural water supply during the 1923–1936 dry cycle. The Lower Area water users saw the water “conservation” actions upstream as leaving less water moving through the Santa Ana Canyon and reaching them downstream, thus diminishing their supply of water (Moreland, 1972: 12). In 1930, the Orange County Engineer recommended that Orange County oppose any further expansion of upstream water spreading operations because retention of water in San Bernardino and Riverside counties threatened the supplies to Orange County (Trager, 1988: 46). Aware of the discontent downstream, the creators of the Chino Basin Protective Association whose constitution is quoted in the preceding chapter were not simply imagining a possible threat to what they saw as the conservation of their water. In 1931, the State Legislature appropriated $400,000 to be matched with local funds for water conservation and flood control in San Bernardino County. In November 1931, the San Bernardino County Board of Supervisors “passed an ordinance authorizing water conservation work throughout the County due to the decline in water levels.”1 The following year, the Water Conservation Association approached each of its member counties for the matching funds for expansion of the spreading facilities in the Upper Area. Meanwhile, new water spreading facilities were constructed by other organizations in the Upper Area on Day Creek in 1931 and on Deer Creek in 1933. The state funding and the planned expansion of upstream water retention and recharge facilities reinforced the concern among Orange County water users that these efforts in the Upper Area would further decrease the availability of water supply in the Lower Area, and sparked an open conflict. One concerned Orange County water user was James Irvine. The Irvine Company was, without doubt, the dominant economic organization in Orange County. The original land holdings of the Irvine Ranch extended over 172,000 of Orange County’s 500,000 acres – in other words, one third of Orange County was once the Irvine Ranch, which extended from the Santa Ana Mountains to the Pacific Ocean. The Irvine Company had been formed to manage the considerable assets of the Irvine family and was principally engaged in land development, in the course of which it sold off acreage. As of 1932, the Irvine Company still held approximately 92,000 acres, including some of the best farmland in the county, much of which was riparian to the Santa Ana River and the rest was watered with wells that produced from the Orange County basin (Weschler, 1968: 13 fn). The Company had 80 wells in operation in 1932.2 In 1932, James Irvine received a report from G.A.  Elliot, an Irvine Company engineer, which recommended that Orange County “not only not participate in the proposed spreading plan in the Upper Basin but should prevent, if possible, any further conservation above the lower canyon until an equitable arrangement has

 San Bernardino County Flood Control District, 1976, p. 17.  Orange County Water District Annual Report, June 1983.

1 2

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4  Upstream-Downstream Conflicts, 1930–1960

been agreed to by all parties in interest.”3 On the basis of this report, Irvine filed a protest in July 1932 against the Water Conservation Association and all parties spreading water in Mill and Lytle Creeks.

4.2  T  he Irvine Company vs. Fontana Union Water Company et al.: The First Upstream-Downstream Litigation No settlement of the protest was reached, and in November 1932 The Irvine Company filed a suit in federal court in Los Angeles against all parties spreading water adjacent to the Santa Ana River, Mill Creek, and Lytle Creek (Scott, 1977: 222). The company claimed that their actions endangered its riparian right and also threatened the replenishment of the 80 wells supplying water to the company (Trager, 1988). The company sought a declaration of its rights and an injunction restraining the upstream defendants from diverting quantities of water sufficient to damage the company’s rights. The original action, Irvine Company v. Fontana Union Water Company et al., was expanded until it included twenty defendants who were diverting water from Mill Creek, Lytle Creek, and the Santa Ana River (Weschler, 1968: 13). As the Irvine litigation grew, in number of defendants and scope, the prospective costs to be incurred by the Irvine Company escalated. So did the potential benefit to other downstream users if Mill Creek and Santa Ana River diversions were curtailed. The Irvine Company and other Orange County water interests sought the formation of a public special district encompassing lands that stood to gain from a successful prosecution of the suit. Funds raised by such a district could be used to defray the Irvine Company’s costs and more equitably apportion the costs of the action. In April 1933 State Senator Edwards introduced Senate Bill 1201, authorizing the incorporation of the Orange County Water District. The California Legislature approved the Orange County Water District Act on June 4, 1933. Among other things, the Orange County Water District (OCWD) was authorized “to represent the water users and landowners of the Coastal Plain in all litigation involving outsiders” (Weschler, 1968: 14) The OCWD subsequently entered the Irvine litigation as intervenor on behalf of the Irvine Company, and reimbursed the Irvine Company for a major part of the court costs it had incurred in prosecuting the action to that point (Scott, 1977: 224). After several failed attempts to negotiate settlements, the parties agreed in 1936 to a five-year plan of study to be conducted by a three-person watermaster. One member of the trio would be chosen by the downstream litigants, one by the upstream litigants, and one by the court. The watermaster group supervised some spreading experiments on the Santa Ana River, beginning in late 1937 and continuing through 1938 and 1939 (Scott, 1977: 225). The parties used the study results to  Quoted in Moreland, 1972, p. 12.

3

4.3  The View at Mid-Century of Water Supply Prospects for the Santa Ana River…

35

negotiate stipulated agreements about water spreading activities in the upper watershed area. In 1942 the U.S. District Court issued three judgments limiting upstream water spreading, both in total amount and in timing, based on three stipulations by the parties: the Mill Creek Judgment, the Lytle Creek Judgment, and the Santa Ana River Judgment. Each of these judgments reduced the amounts of water the upstream defendants could divert for spreading, set specific amounts per water year for those diversions, specified the upstream spreading locations the defendants could use, and placed the administrative and monitoring responsibilities for ensuring compliance on the defendants (Weschler, 1968: 14).

4.3  T  he View at Mid-Century of Water Supply Prospects for the Santa Ana River Watershed The initial upstream-downstream conflict brought into the open what had been known in the Santa Ana River watershed for years, both from studies and from practical experiences of water users and their organizations: the local water supply was insufficient to satisfy everyone’s demands in an area with a developed economy based on irrigated agriculture. The State Division of Engineering and Irrigation’s Bulletin No. 19, published in 1928, had observed that the area using water in the Santa Ana River watershed was already 368,000 acres, that acreage under development had been increasing at a rate of 10,000 acres per year, and that there remained another 226,000 acres yet uncultivated, most of which were on the valley floor areas that received the least rainfall. The Division of Water Resources’ 1930 Bulletin No. 31 had contained similar observations. First, it concluded that existing water capture and spreading facilities in the Chino Basin were already conserving about all of the flood waters there were to conserve.4 The Bulletin nonetheless recommended the construction of a water storage and flood control reservoir in the “Lower Canyon” (what later became Prado Dam, built by the Army Corps of Engineers in 1941), to control the loss of flood waters from the Upper Area. Second, Bulletin No. 31 concluded: annual recharge [in the Santa Ana River basin] averaged over the past thirty-six years is less than the present demand.... Bulletin 19, with data available up to the beginning of 1928, estimated that the demand at that time exceeded average recharge by 83,000 acre-feet annually. The demand has increased since then, and on the basis of the foregoing estimate the present overdraft should be about 100,000 acre-feet.... The shortage is concentrated in Chino Basin and the Coastal Plain.5

 California Department of Public Works 1930, p. 12.  Ibid., p. 13.

4 5

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4  Upstream-Downstream Conflicts, 1930–1960

A subsequent report concluded that, in Chino Basin alone, the overdraft during the period 1928–1928 through 1937–1938 had been approximately 25,700 acre-feet per year.6 Having been tasked to do so as part of its investigation, the Division of Water Resources in Bulletin No. 31 also considered the diversion of the Mojave River to the Santa Ana Basin to cure its overdraft. The Bulletin did not give this option much weight. It concluded that the transfer of water from the Mojave River Basin to the Santa Ana River Basin would be an expensive proposition and would limit additional development in the Mojave River Basin. Finally, Bulletin No. 31 concluded that only the importation of water would balance the water supply situation in the Santa Ana River Basin. The Bulletin’s publication in 1930 came two years after the organization of The Metropolitan Water District of Southern California (MWD), which was undertaking a project to build an aqueduct to carry Colorado River water into southern California. Three Lower Area cities  – Anaheim, Fullerton, and Santa Ana  – were original member cities of MWD. Annexation of additional territory in the Santa Ana River watershed to MWD, Bulletin No. 31 noted, would “involve the organization of the area into one or more districts.”7 As the Irvine Company litigation proceeded through the late 1930s and into the early 1940s, water supply conditions in the Santa Ana River watershed improved somewhat. The dry cycle that had begun in 1923 ended in 1936. In fact, massive flooding occurred throughout southern California in 1938, which triggered additional flood control and water conservation projects throughout the region in the 1940s, including Prado Dam. Water levels throughout the Santa Ana River area regained some lost ground. In Chino Basin from 1936 to 1944, water levels in Chino Basin remained steady through the central portion of the basin, rose a little (ten feet or less) through most of the remainder, and rose substantially (over 200 feet) on the north side of Red Hill Dike in the Cucamonga sub-basin.8 It was a short-lived respite. Soon after the Irvine litigation came to an end, another dry cycle began. This drought period began in 1945 and lasted for 20 years. During the first six years, from 1944–1945 through 1950–1951, average annual runoff in the Santa Ana River watershed was 39% below the mean (Troxell, 1957: 28). In Chino Basin during those years, water levels fell 20–50 feet in the central portion of the basin, 10–20 feet through most of the remainder, and 150–200 feet north of Red Hill Dike. By the late 1940s, any prospect that the long-term future water supply situation of the Santa Ana River watershed would be better than the recent past had proved illusory. It was plain that the local water supply – both surface and ground water – would be insufficient to meet the increasing demand in the basin. The California Department of Water Resources estimated that under 1948 conditions of

 California Department of Water Resources, 1959, p. 35.  California Department of Public Works 1930, pp. 17–18. 8  California Department of Water Resources, 1959. 6 7

4.4  The Creation of Water Districts in the Upper Santa Ana River Area

37

development, Chino Basin alone would require supplemental water supplies of 23,300 acre-­feet per year to balance supply and demand. Under projected ultimate conditions of development, Chino Basin would need an estimated 144,300 acre-feet per year.9 The warnings expressed in 1930 in Bulletin No. 31 were proving to be accurate. Balancing water supply with water demand would require imported water. In the 1940s and 1950s in southern California, “imported water” meant MWD’s Colorado River supplies. And as Bulletin No. 31 had also accurately stated, that would involve the creation of water districts.

4.4  T  he Creation of Water Districts in the Upper Santa Ana River Area The 1940s and 1950s proved to be an active time in the formation of water districts in the Upper Area, several of which became important parts of present-day water resource management in the Santa Ana River watershed. The period began with the creation in 1939 of the San Bernardino County Flood Control District after the destructive 1938 floods. Over the ensuing years, the San Bernardino Flood Control District gradually assumed the operation of most major water impoundment and spreading facilities in San Bernardino County, including those in Chino Basin (Moreland, 1972: 13). Today in the upper area there are more than 30 spreading grounds on the Cucamonga, Day, Deer, Etiwanda, Lytle, San Antonio, San Sevaine and other creeks, plus the Santa Ana River. Most of them were operated by the San Bernardino County Flood Control District until the end of the 20th century. On February 7, 1949, the Chino Basin Protective Association voted to take steps to incorporate. After additional discussion, on December 6, 1949, an alternative path was chosen: instead of incorporating, the association opted to support the organization of the Chino Basin Water Conservation District under the State’s Water Conservation District Act. The Chino Basin Water Conservation District, in cooperation with the San Bernardino County Flood Control District and the Los Angeles County Flood Control District, acquired land and excavated additional percolation basins to collect storm runoff and imported water in order to increase artificial recharge into Chino Basin and percolation of wastewater to help offset the overdraft. The District covers an area of 130 square miles with a population of approximately 400,000, including all or parts of the cities of Ontario, Upland, Chino, and Rancho Cucamonga.10 After establishing the Chino Basin Water Conservation District to improve the replenishment of the Basin with imported water, wastewater, and conserved flood

 Ibid., p. 63.  Association of California Water Agencies (1985) ACWA’s 75-Year History. Sacramento, CA: Association of California Water Agencies, p. 202.

9

10

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4  Upstream-Downstream Conflicts, 1930–1960

water, the Protective Association also supported the establishment of the Chino Basin Municipal Water District (CBMWD). This District, established June 6, 1950 under the Municipal Water District Act, originally covered 92 square miles with a population of about 80,000 in the west end of San Bernardino County.11 In 1951, by special election, the CBMWD annexed to MWD, thus gaining access to imported water supplies. Today, the Chino Basin Municipal Water District – since renamed the Inland Empire Utilities Agency – covers an area of about 242 square miles with a population of approximately 875,000, and plays a key role in water resources management both in the Chino Basin and in the Santa Ana River watershed as a whole. Because of limitations in the Municipal Water District Act, municipal water districts in California may not cross county boundaries. Therefore, even as it expanded, the Chino Basin Municipal Water District could not encompass the entire Chino Basin. In 1950, the portion of Chino Basin that is located within Los Angeles County was organized into the Pomona Valley Municipal Water District, which also annexed to MWD. Pomona Valley Municipal Water District is now known as the Three Valleys Municipal Water District. One of the communities supplied with supplemental water  – imported water and treated wastewater  – by Three Valleys Municipal Water District is the City of Pomona, one of the largest population centers and groundwater users in Chino Basin. The eastern portion of Chino Basin that is located within Riverside County was organized into the Western Municipal Water District of Riverside County (now just known as Western Municipal Water District or WMWD). This district was established by special election on January 26, 1954, and annexed to MWD after a special election on September 28, 1954.12 Today, WMWD covers 567 square miles in Riverside County (extending far beyond Chino Basin), and sells imported and recycled water within Chino Basin to the City of Norco and the Jurupa Community Services District, which provides water service for the Chino Basin cities of Eastvale and Jurupa Valley. WMWD also plays an important role in water resources management in the Santa Ana River watershed. These were some of the most important present-day water districts established in the Upper Area during the 1940s and 1950s, though certainly not all of the water districts there.13 Counting other public and private water service organizations, there

 Ibid., p. 201.  Ibid., p. 189. 13  Another municipal water district was formed in the upper watershed area, but that one does not overlie Chino Basin. The San Bernardino Valley Municipal Water District, covering the eastern two-thirds of the Upper Area on the Bunker Hill-San Timoteo side of the San Jacinto Fault, was incorporated on February 17, 1954 under the Municipal Water District Act of 1911. The incorporated cities of Rialto, Colton, Grand Terrace, San Bernardino, Loma Linda and Redlands, as well as the unincorporated communities of Bloomington, Highland, and Yucaipa, are within its boundaries. This District never annexed to MWD, but instead contracted with the State in 1960 for State Project water from northern California, receiving an ultimate entitlement (in 1991) of 102,600 acre-feet per year. This district is important in the overall governance and management of the Santa 11 12

4.5  The Second Upstream-Downstream Battle: Orange County Water District v. City…

39

were approximately 400 water service agencies in the Santa Ana River watershed as of 1959.14

4.5  T  he Second Upstream-Downstream Battle: Orange County Water District v. City of Riverside et al. By itself, the creation of water districts, some of which annexed to MWD and acquired access to imported water supplies, was not enough to restore a water supply balance to the Santa Ana River system. In Chino Basin, artificial recharge actually declined (partly as a result of the Irvine suit, but especially after the onset of the drought) while upstream groundwater extractions in the Chino-Riverside area increased through the 1940s. The combined result of the drought and the growing use of water in the upper watershed area was that the water supply coming into the lower area  – measured by the amount of rising water reaching Prado Dam – dwindled. The district formation and annexation processes undertaken in and shortly after 1950 did not result in large amounts of imported water being brought into the Chino Basin, or the Upper Area as a whole.15 Colorado River water deliveries to the Santa Ana River watershed began in 1949, but total deliveries to the Chino-Riverside portion of the upper area during the 1950s were relatively small.16 As a consequence, the use of local water supplies in the upper area kept growing, groundwater overdraft continued, and the flow of water from the upper watershed area to the lower watershed area diminished significantly. In 1951, the Orange County Water District initiated a legal proceeding as plaintiff on behalf of District water users. The District chose as defendants four upstream

Ana River and watershed, and therefore affects Chino Basin but is not directly involved in Chino Basin groundwater management. 14  California Department of Water Resources, 1959, pp. 49–50. 15  This remained the case through the rest of the decade. See California, State of, Assembly Interim Committee on Water, 1962, p. 28: “About half of the [Upper Santa Ana River] area has annexed to the Metropolitan Water District, but these annexed areas use only about 65,000 acre-feet of imported water. Most of the water users continue to pump the cheaper ground water.” Cost was not the only factor. At the time, MWD had only Colorado River water to provide to its member agencies, and the local groundwater was of much better quality. “As a consequence, there is limited advantage, if not an actual disadvantage, in spreading of presently [sic] available imported water, depending on the quantities spread.” (ibid.) 16  Deliveries to the Bunker Hill-San Timoteo half of the upper area were virtually nil as a result of San Bernardino Valley Municipal Water District’s decision not to annex to MWD. San Bernardino chose to wait for the completion of the State Water Project, and to contract directly with the State for deliveries of that water from northern California. San Bernardino was one of the first applicants to the State Water Resources Control Board for a permit to use State Project water for groundwater recharge – in the Bunker Hill basin, north and east of Chino Basin. California Assembly Interim Committee on Water, 1962, p. 29.

40

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cities in the watershed – Riverside, San Bernardino, Colton, and Redlands. None of these cities is located in Chino Basin, a fact that may reflect the purpose of the OCWD’s lawsuit. The Lower Area water users, represented by the district, saw themselves as paying for more expensive imported water supplies through MWD while Upper Area water users continued to divert the surface waters and pump the groundwater of the Santa Ana River watershed. Thus, in their view, the Upper Area users were enjoying a considerable savings while diminishing the natural water supply reaching the Lower Area. The Lower Area users were correct about the use of imported water in the watershed – nearly all of it was being imported by Orange County (14,960 of the 16,040 acre-feet in 1951–1952).17 The OCWD lawsuit therefore may have excluded Chino Basin cities because, by the time the suit was filed in 1951 the Chino Basin Municipal Water District and Pomona Valley Municipal Water District had been formed with the intention of annexing to MWD and acquiring access to imported water supplies. Orange County Water District’s action was targeted at four cities east of Chino Basin, in an area that had not yet acted to acquire a supplemental water supply. Orange County Water District v. City of Riverside et  al.18 became the second upstream-downstream litigation in the Santa Ana River watershed. The Orange County Water District sought to place a ceiling on production by these four large upstream users to protect the natural flow into Orange County (Crooke & Toups, 1961: 4). The Orange County Water District’s complaint, filed in 1951, alleged that the defendant cities had for years taken water from the watershed, and either they had no such right to the water or whatever right they had was subordinate to the District’s rights. The relief requested was a declaration of the water rights of each city, but not those of the District, and an injunction prohibiting each city from taking water in excess of its declared right. The case of Orange County Water District v. City of Riverside et al. did not reach trial until six years later, in 1957. In the interim, the defendant cities had lost at virtually every stage of the pre-trial process. Their demurrers were overruled, their motions for dismissal were denied, and their motion for judgment on the pleadings was denied. The defendants moved for a reference of the case to the State Water Rights Board, and this motion for reference was denied too. The case proceeded to trial, which lasted for 114 days in 1957. Forty-two witnesses testified, and the trial record contains over 560 exhibits and over 15,000 pages of testimony.19 The judgment issued by the Superior Court after that trial clearly favored the Orange County Water District. The court did not rule in favor of the district’s allegation that the upstream cities had no right to any of the waters of the Santa Ana River watershed; the court held instead that the defendants had acquired and perfected

 California Department of Water Resources, 1959, p. 93.  173 Cal.App. 2d 137, 343 P.2d 450 aff’d on rehearing, 188 Cal.App.2d 566, 10 Cal.Rptr. 899 (1961). 19  Appellants’ Brief, Orange County Water District v. City of Riverside et al., p. 2. 17 18

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41

prescriptive rights to some of the water by adverse possession. However, the relevant period of adverse possession for the purpose of determining their declared rights was set as the five-year period prior to the initiation of the lawsuit, i.e., from 1946 to 1951. Each city’s declared right was limited to the amount it had taken in the first year of that five-year period. This meant that each city in 1957 was enjoined from taking more water  – including pumped groundwater  – from the Santa Ana River Watershed than it had taken in 1946. The cities were given three years to find themselves supplemental water connections. Thereafter their pumping would have to be limited to the prescribed amounts (Cooper, 1968). If Orange County Water District had intended the lawsuit to force the upstream cities to join Metropolitan Water District and gain access to imported water, it was partially successful. In Riverside County, Western Municipal Water District was established at the beginning of 1954 and became a Metropolitan Water District member agency later that year. In addition to covering the City of Riverside, Western Municipal Water District includes the eastern portion of Chino Basin that lies within Riverside County. With the establishment of Western Municipal Water District, effectively all of Chino Basin was brought within the wholesale water service area of Metropolitan Water District.20 The 1957 trial court judgment was appealed by the defendant cities twice. Each time, the District Court of Appeal upheld the judgment while ordering some modifications in the amounts of the declared rights of the defendant cities. After the second appeal came to the same end as the first, in 1961, the cities did not appeal again. Of course, exhausting their appeals did not mean that the upstream cities were satisfied with the results, as the following vivid description attests (Cooper, 1968: 122–126): The end of the Santa Ana River suit set off a chain of reactions ranging from the practical to the ridiculous.... That the suit put extreme pressure on the upstream defendants to join the Metropolitan Water District brotherhood could hardly be denied. The city of Riverside, yielding to threat, hints, or common sense – take your pick – joined the Western Municipal Water District of Riverside County and found in Colorado River water an adequate supplement to its limited ground water. The cities of Colton and Redlands steered clear of MWD. They solved their immediate water problems by annexing, buying, or condemning adjacent ground water rights. The people of San Bernardino, after having poured more than $300,000 into the court battle, found themselves restricted to an annual take of 14,625 acre-feet of water in a year when, despite a voluntary rationing campaign, they had just used 22,400 acre-feet. City leaders faced the challenge of firming up 9,000 acre-feet for their immediate needs, plus a thousand additional acre-feet each year to permit the community to grow. They sought to limit pumping by other users of the common ground water supply. They sponsored a ‘nip the drip’ campaign against leaky faucets and water waste generally. They pushed plans for percolating purified effluent from the city's own sewage treatment plant back into the under-

 There is a very small area in the northeast corner of Chino Basin that lies within San Bernardino County but outside the service area of the Chino Basin Municipal Water District (now named Inland Empire Utilities Agency).

20

42

4  Upstream-Downstream Conflicts, 1930–1960 ground basin. They hired a consulting engineer to study their water supply problem. In 1962 he told them to join the Metropolitan Water District... For months on end the editorial and news columns of the [San Bernardino] Sun-­ Telegram hammered on a single theme: the city’s only salvation was to integrate with the Metropolitan Water District, to which it logically belonged. But when the votes were counted in April 1964, the majority of San Bernardino’s citizens for the third time in ten years rejected that thesis. The threat of water rationing and economic slowdown until ‘Feather River Day’ in 1972 was more acceptable to them than the prospect of becoming, as they saw it, only a cotterpin in the Metropolitan juggernaut, run by a board sixty miles away in Los Angeles.

References Association of California Water Agencies. (1985). ACWA’s 75-year history. Sacramento, CA: Association of California Water Agencies. California Assembly Interim Committee on Water. (1962). Ground water problems in California: A report of the Assembly Interim Committee on Water to the California Legislature. Sacramento, CA: California State Assembly. California Department of Water Resources. (1959). Santa Ana River investigation (Bulletin No. 15). Sacramento, CA: State Printing Office. Cooper, E. (1968). Aqueduct empire. Glendale, CA: Arthur H. Clark Co.. Crooke, H., & Toups, J. (1961). Ground water basin management and artificial recharge in Orange County, California. Paper presented at the Biennial Conference on Ground Water Recharge. Berkeley, CA. Moreland, J. A. (1972). Artificial Recharge in the Upper Santa Ana Valley, Southern California (U.S. Geological Survey Open-File Report). Menlo Park, CA: United States Geological Survey. San Bernardino County Flood Control District. (1976). Cucamonga Creek after 200 years: 1776–1976. San Bernardino, CA: San Bernardino County Flood Control District. Scott, M.  B. (1977). Development of water facilities in the Santa Ana River basin, 1810–1968 (U.S. Geological Survey Open-File Report 77-398). Menlo Park: U.S. Geological Survey. Trager, S. M. (1988). Emerging forums for groundwater dispute resolution in California: A glimpse at the second generation of groundwater issues and how agencies work towards resolution. Pacific Law Journal, 20(1), 31–74. Troxell, H.  C. (1957). Water resources of Southern California, with special reference to the drought of 1944-51 (U.S.  Geological Survey Water-Supply Paper 1366). Washington, DC: U.S. Government Printing Office. Weschler, L. (1968). Water resources management: The Orange County experience (California Government Series No. 14). Davis, CA: Institute of Governmental Affairs.

Chapter 5

Setting the Stage for a Chino Basin Management Program: Changes in Water Use, and the Third Santa Ana River Litigation, 1960–1969

Abstract  Through the 1960s urbanization advanced rapidly throughout the region, which increased water demands but also paved over land surfaces and storm water channels that had previously allowed precipitation and runoff to percolate into the groundwater basin. Imported water became an important element of water supplies within Chino Basin, but overdrafting of groundwater supplies continued as established agricultural enterprises and expanding municipal and industrial users competed for the limited supply. Another lawsuit from Orange County – the third in four decades – produced new arrangements governing water outflow from the upper area of the Santa Ana River watershed (including Chino Basin) to the lower area (Orange County). The resulting Santa Ana River Judgment in 1969 layered another set of institutions on the landscape and also spurred the initiation of a concerted effort to develop groundwater governance and management arrangements in Chino Basin. Keywords  California · Chino Basin · Groundwater · Santa Ana River · Orange County · Urbanization · Santa Ana River Watermaster · Santa Ana Watershed Project Authority (SAWPA)

The 1960s were a period of significant change in Chino Basin water use. Urbanization continued its rapid advance, which increased water demands and paved over land surfaces where precipitation and runoff used to percolate into the groundwater basin. Thus even as imported water became an important element of water supplies within Chino Basin, the overdrafting of groundwater supplies continued. The established agricultural enterprises and the expanding municipal and industrial sectors competed for the diminishing supply. Another lawsuit from Orange County – the

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_5

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5  Setting the Stage for a Chino Basin Management Program: Changes in Water Use…

third in four decades – produced new arrangements governing water outflow from the upper area of the Santa Ana River watershed (including Chino Basin) to the lower area (Orange County). The resulting Santa Ana River judgment and its implementation layered another set of institutions on the landscape, providing both opportunities and constraints for Chino Basin management.

5.1  Increased Water Production and Changing Water Use In the upper Santa Ana River watershed during the 1950s, groundwater extractions continued to rise while groundwater recharge and rising water reaching Prado Dam declined. These changes were reflected in diminished base flow of water at Prado Dam into the lower watershed. The character of water use in the upper area also changed in the 1950s and 1960s, reflecting changes in land use. In the Chino-­ Riverside portion of the upper watershed area, urban and suburban land use had grown from 27,000 acres in 1932 (the time of the first upstream-downstream litigation in the Santa Ana River watershed) to 121,800 acres in 1963. Non-water service areas (basically, undeveloped land) shrank from 136,200 acres in 1932 to 68,200 acres in 1963. Over the same period, irrigated agricultural acreage (which according to Division of Water Resources Bulletin No. 31 in 1930 had grown rapidly since the 1880s) decreased somewhat, from 113,900 acres in 1932 to 87,100 acres in 1963.1 The Chino-Riverside area was undergoing rapid urbanization. For example, in the Fontana area of northeast Chino Basin, irrigated agricultural acreage reached its peak in the 1940s and then declined: in the 1940s, 15,000 acres in the Fontana area had been devoted to irrigated agriculture, but by 1967 the corresponding figure was about 3000 acres (Scott, 1977: 144). Patterns of groundwater extractions in the area reflected the urbanization process. In addition to agricultural pumping, groundwater extractions in Chino Basin clearly clustered around the cities, particularly Pomona and Ontario. The effect of this urbanization on total water use in the upper watershed area was mixed – while groundwater extractions grew, the consumptive use of water declined, despite the long drought cycle that had begun in 1945. Generally, urban uses consume less water than irrigated agriculture per unit of land. The consumptive use of water in the Chino-Riverside area had actually peaked before the commencement of the dry cycle. According to the California Department of Water Resources, consumptive use in the Chino-Riverside area reached its all-time high of 595,400 acre-­ feet in the 1940–41 water year. By 1958–59, the 14th year of the drought, it was down to 389,300 acre-feet.2 These changes raised the possibility that loss of inflow to the lower watershed area might not have been caused by the circumstances that had occasioned the first

 California Department of Water Resources, 1970, p. 48.  Ibid., 47–48.

1 2

5.2 A Different Approach to Watershed Litigation: Orange County Water District…

45

two upstream-downstream adjudications. The decline in water supply availability to the Lower Area in the 1920s and 1930s may have been due more to the rapid increase in irrigated agriculture in the Upper Area than the artificial recharge programs targeted by the litigation. Artificial recharge in the Chino Basin had ground virtually to a halt since the mid-1940s, consumptive water use in the Upper Area had peaked and begun declining, and yet inflow to the lower area at Prado Dam had continued to diminish. A comparison of two U.S. Geological Survey reports demonstrates the change in outflow from the upper Santa Ana River watershed area – particularly from Chino Basin to the stretch of the river between the Riverside Narrows and Prado Dam. A report published in 1949 (Garrett & Thomasson, 1949) estimated the groundwater outflow from Chino Basin for the period 1930 to 1946. It found that, except for one year with major flooding, annual outflow fluctuated in a fairly narrow range from year to year during that period – from a low of 31,000 acre-feet to a high of 41,000 acre-feet. A subsequent report in 1972 (French 1972) estimated the groundwater outflow for the period 1933 through 1966. The estimates for the period up to 1946 closely matched what was reported in 1949. After that, however, there was a stark and sustained drop. Estimated annual groundwater outflow declined from 40,000 acre-feet in 1947 to 30,000 acre-feet in 1952, 23,000 acre-feet in 1957, 16,000 acre-­ feet in 1962, and just 9400 acre-feet in 1966. The loss in water supply availability to the Lower Area in the 1940s and 1950s might have had more to do with the dry cycle that began in the mid-1940s than with Upper Area recharge operations or groundwater extractions. The changes since the 1940s raised the possibility by 1960 that limiting upstream water conservation efforts and cutting the water production of upstream cities had missed the mark – perhaps Orange County’s diminishing supply was related to other causes. Regardless of the causes, the negative effects on the Lower Area were the same, and Orange County Water District took action once again.

5.2  A  Different Approach to Watershed Litigation: Orange County Water District v. City of Chino et al. Around this time, Santa Ana River area water users were offered the lesson of a new approach to upstream-downstream litigation in the neighboring San Gabriel River watershed to the west, in Los Angeles County. There, downstream water users had sued upstream water users in 1959, but the litigation took a different course. A settlement worked out between the two areas in 1961 was not based on, and did not include, any limitation on the water production or water conservation activities of upstream users. Instead, the San Gabriel River watershed adjudication simply obligated the upstream water users to guarantee a specific amount of water to the downstream water users every year, to be measured at the narrow juncture between the Upper Area and the Lower Area. As long as the upstream water users delivered the

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5  Setting the Stage for a Chino Basin Management Program: Changes in Water Use…

required quantity of water to the downstream water users, the San Gabriel River adjudication left the upstream water users free to manage their water supplies as they deemed appropriate. The physical circumstances of the San Gabriel River watershed and of the Santa Ana River watershed are similar, though certainly not identical. Among the most notable similarities is their “hourglass” shape, with a narrow divide between the Upper Area and the Lower area. Furthermore, in both watersheds, a dam, a reservoir, gaging stations, and a downstream system of water spreading facilities had been constructed and were in use at that narrow passage between the Upper and Lower areas. The San Gabriel River approach had the potential of working in the Santa Ana River system – the flow of water through Prado Dam could be monitored, measured, and guaranteed to meet some minimum annual amount. To the Lower Area, whether the Upper Area provided that amount of water through Prado Dam by importing more water, limiting water withdrawals, improving the return of water to the system after it had been extracted (including the reuse or recharge of wastewater), or some combination of methods, mattered less than the ultimate objective, which was to receive with assurance what they perceived to be their fair share of the natural water supplies of the Santa Ana River watershed. On October 18, 1963, 2 years after the principles of settlement were reached in the San Gabriel River adjudication, the Orange County Water District went back to court, beginning the case of Orange County Water District v. City of Chino et al.3 This time, the Orange County Water District did not name as defendants a few upstream water companies or a handful of upstream cities, but 1200 defendants and 20,000 John Does (Cooper, 1968: 122–126). Subsequent amendments to the complaint brought the number of named defendants to more than 2500.4 The District’s original complaint requested an adjudication of the water rights of every water user in the upper area. The defendants in the Upper Area countered that this constituted a general stream adjudication, and thus all parties in both the Upper and Lower areas would have to be named. They cited, among other things, the fact that the Orange County Water District had named the United States as a defendant. Congress had permitted the United States to be sued over water rights only in a “general stream adjudication.” The defendants ultimately filed 13 cross-complaints, naming as cross-defendants essentially all of the water users and water rights owners in the Lower Area and bringing the total number of named parties to over 4000.5 The cross-complaint strategy of the Upper Area was more than simply “going nuclear” against the Lower Area. A guiding principle of water resources 3  Civil Case No. 117628 in the Superior Court of the State of California for the County of Orange, 1969. Complaint filed October 18, 1963. Judgment entered and filed April 17, 1969 by Judge John P. McMurray. 4  Settlement Documents, Orange County Water District v. City of Chino et  al., Civil Case No. 117628, Superior Court of the State of California for the County of Orange, p. 4. 5  Judgment, Orange County Water District v. City of Chino et al., Civil Case No. 117628 in the Superior Court of the State of California in and for the County of Orange, p. 6.

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47

management in Orange County since the formation of the Orange County Water District in 1933 had been to avoid an intra-basin adjudication of water rights in Orange County. Indeed, one power that was conspicuously denied the Orange County Water District was the authority to initiate an adjudication of water rights within the Orange County portion of the Santa Ana River watershed. The Upper Area’s “general stream adjudication”/cross-complaint response showed that it too meant business and attempted to turn the litigation into something the district could not have accepted. Having played this litigation version of “High Noon,” and with the San Gabriel River adjudication having been completed (that judgment was entered in 1965), the Upper and Lower areas in the Santa Ana River watershed began serious negotiations. In 1968, the complaint was dismissed against all defendants except the three major upstream municipal water districts  – the Chino Basin Municipal Water District, Western Municipal Water District of Riverside County, and San Bernardino Valley Municipal Water District. The cross-complaints were also dropped. The four water districts negotiated a stipulated judgment similar to the one in the San Gabriel River watershed (Trager, 1988: 47). The stipulated judgment stated: It is apparent to the parties and to the Court that development of a physical solution based upon a formula for inter-basin allocation of obligations and rights is in the best interests of all the parties and is in furtherance of the water policy of the State. For purposes of such a physical solution, it is neither necessary nor helpful to define individual rights of all claimants within the watershed. Nontributary supplemental sources of water are or will be available to the parties in quantities sufficient to assure implementation of a solution involving inter-basin allocation of the natural water supply of the Santa Ana River system. Sufficient information and data of a general nature are known to formulate a reasonable and just allocation as between the major hydrologic subareas within the watershed, and such a physical solution will allow the public agencies and water users within each major hydrologic subarea to proceed with orderly water resource planning and development.6

The “physical solution” was the stipulated judgment’s provision that the Lower Area was entitled to receive 42,000 acre-feet of usable “base flow” water per year at Prado Dam as a long-term average, plus all storm flows reaching Prado Flood Control Reservoir.7 The three Upper Area municipal water districts were made responsible for guaranteeing that long-term annual average to the Lower Area. In recognition of the fact that the upper area of the watershed is composed of an eastern area (Bunker Hill-San Timoteo) and a western area (Chino-Riverside), the responsibilities for guaranteeing the Base Flow were divided between San Bernardino Valley Municipal Water District (SBVMWD), on the one hand, and Chino Basin Municipal Water District (CBMWD) and Western Municipal Water District of Riverside County (WMWD) on the other. Within the Upper Area, Riverside Narrows was the designated dividing point. SBVMWD was made responsible for ensuring that an average annual Base Flow of 15,250 acre-feet reached  Judgment, Orange County Water District v. City of Chino et al., p. 7.  Ibid., p. 10.

6 7

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5  Setting the Stage for a Chino Basin Management Program: Changes in Water Use…

Riverside Narrows. CBMWD and WMWD were made responsible for ensuring that an average annual Base Flow of 42,000 acre-feet reached Prado Dam.8 Because these were long-term average requirements, some year-to-year flexibility was provided through a system of cumulative credits for years when the water flows exceeded the long-term average and cumulative debits for years when the water flows were deficient. In any given year for the first 15 years of operation under the judgment, for example, SBVMWD had to ensure a minimum of 13,420 acre-­ feet of Base Flow plus one-third of any cumulative debit at Riverside Narrows. However, if SBVMWD managed to accumulate a cumulative credit of 10,000 acre-­ feet or more at Riverside Narrows in the first 15 years of operation, or any year after the 1985–86 water year if there were no cumulative debit, SBVMWD could deliver a minimum of 12,420 acre-feet in a year.9 Similarly, CBMWD and WMWD could provide as little as 37,000 acre-feet in any year during the first 15 years of operation when there was a cumulative credit of 30,000 acre-feet or more, and as little as 34,000 acre-feet after 15 years as long as there was no cumulative debit. In any year when there was a cumulative debit, the minimum flow plus one-third of the cumulative debit had to be provided to the Lower Area.10 Compliance with the long-term averages would be assured by an accounting every 10  years, with the upstream districts obliged to erase any cumulative debits accrued in the previous years. As was done with the San Gabriel River judgment, the Santa Ana River judgment was to be administered by a multi-member, representative watermaster, with continuing jurisdiction retained by the Court to make modifications or enforce provisions of the judgment as needed. The Santa Ana River Watermaster consisted of 5 persons appointed by the Court. Two of the five members would be nominated by the Orange County Water District. One member each would be nominated by the three upstream districts. To avoid 3-to-2 upper area-lower area splits within the Watermaster, the judgment also provided that all findings and determinations of the Watermaster had to be unanimous, with the Court reserving the authority to settle issues on which unanimity could not be achieved.11 To avoid incentives by any district to spread costs to other districts, the judgment provided that each district would pay the compensation of the Watermaster member(s) it had nominated. All other costs incurred by the Watermaster in the administration of the judgment would be apportioned among the districts: 40% to Orange County Water District, and 20% each to SBVMWD, CBMWD, and WMWD.12 The Santa Ana River Judgment added an innovation that had not been made part of the San Gabriel River approach. The Santa Ana River judgment took water quality into account in its formula for the calculation of the base flow received, both at Riverside Narrows and at Prado Dam. Using samples of the water passing each of these points, the amount of base flow could be adjusted downward when the total 8  In 1978, CBMWD and WMWD entered into an agreement to divide their joint obligation under the Santa Ana River Judgment for delivery of the required quantities of water to the Lower Area at Prado (Trager, 1988: 48–49). 9  Judgment, Orange County Water District v. City of Chino et al., 11 et seq. 10  Ibid. at 13 et seq. 11  Ibid. at 16. 12  Ibid.

5.3 Performance Under the Santa Ana River Judgment

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dissolved solids (TDS) of the water was too high, penalizing the upstream areas for delivering poorer quality water to the downstream area. On the other hand, when the TDS of the water was especially low, the calculation of base flow received would be adjusted upward, rewarding the upstream areas for providing better quality water to the downstream areas.13 The districts were aware that water quality improvements might need to be taken in the upper watershed area for the benefit of both areas. As they negotiated the Santa Ana River Judgment, they also created a joint-powers agency named the Santa Ana Watershed Planning Agency (SAWPA), through which they could collaborate on future projects addressing both water supply and water quality issues. SAWPA was established in 1968, and renamed the Santa Ana Watershed Project Authority in 1975. Toward the end of the stipulation came the statements that represented the Upper Area’s gain from the litigation. The two prior Santa Ana River watershed judgments were essentially suspended as long as the Upper Area maintained compliance with this new one: Water users and other entities in Upper Area have rights in the aggregate, as against all Lower Area claimants, to divert, pump, extract, conserve, store, and use all surface and ground water supplies originating within Upper Area without interference or restraint by Lower Area claimants, so long as Lower Area receives the water to which it is entitled under this Judgment and there is compliance with all of its provisions.14 So long as SBVMWD is in compliance with the terms of the physical solution herein, OCWD is enjoined and restrained from enforcing the judgment listed below against SBVMWD or any entities within or partially within SBVMWD which have stipulated to accept and adopt such physical solution. So long as WMWD and CBMWD are in compliance with the terms of the physical solution, OCWD is enjoined and restrained from enforcing the judgment listed below against WMWD and CBMWD or any entities within or partially within WMWD and CBMWD which have stipulated to accept and adopt such physical solution. (a) The Irvine Company, plaintiff, Orange County Water District, intervenor, vs. San Bernardino Valley Water Conservation District et al., defendants, U.S. Dist Ct., S.D. Cal Civ No. Y-36-M, judgment entered September 11, 1942... (b) Orange County Water District vs. City of Riverside et  al., San Bernardino Superior Court No. 84671.15

The judgment in Orange County Water District v. City of Chino et al., the “Santa Ana River Judgment,” was entered and filed April 16, 1969. The effective date of the judgment’s physical solution was the beginning of the 1970–71 water year, October 1, 1970.

 Ibid. at 12.  Ibid. at 10. 15  Ibid. at 15. 13 14

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Box 5.1 The Three Upstream-Downstream Lawsuits on the Santa Ana River Irvine Co. v. Fontana Union Water Co. et al. (1932–1942) Issue: Impact of Upper Area water conservation activities, including groundwater recharge, on Santa Ana River flows reaching Orange County. Institutions created: Chino Basin Protective Association, 1931 – formed in anticipation of litigation from the Lower Area; Orange County Water District, 1933 – formed to take over the litigation on behalf of the Lower Area, and for other purposes. Outcome: Judgments limiting amounts of water diverted by upstream defendants. Orange County Water District v. City of Riverside et al. (1951–1961) Issue: Increased water use by four Upper Area cities reducing water availability to Lower Area; also seen as an effort to force upstream cities to acquire imported water. Institutions created: Western Municipal Water District of Riverside County, 1954; San Bernardino Valley Municipal Water District, 1954. Outcome: The four defendant cities were ordered to reduce their surface water diversions to 1946 amounts. Orange County Water District v. City of Chino et al. (1963–1969) Issue: Naming more than 1000 Upper Area defendants, Orange County Water District seeks a declaration of the Lower Area’s right to Santa Ana River inflow. Institutions created: Santa Ana Watershed Planning Agency, 1968 (later renamed the Santa Ana Watershed Project Authority); Santa Ana River Watermaster, 1969. Outcome: Negotiated stipulation superseded previous judgments and guarantees the Lower Area a minimum quantity and quality of annual inflow, with Santa Ana River Watermaster as court-appointed monitor.

5.3  Performance Under the Santa Ana River Judgment The five-person Santa Ana River Watermaster has monitored the operation of the Santa Ana River Judgment since the 1970–71 water year. Operation of the Judgment involves considerable coordination with the U.S. Army Corps of Engineers, which operates Prado Dam, and with the U.S. Geological Survey, which operates several gaging stations along the Santa Ana River and its tributaries. The Corps of Engineers operates Prado Dam as both a flood-control facility and a water conservation facility. During storms, for example, the Corps controls the gates at the dam so at least some of the storm flow is retained in storage. Gradual

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releases of the stored water are made after storms in order to maximize the conservation and use of the water in the Lower area.16 Although the requirements of the Santa Ana River Judgment relate to base flows of the River system and not to storm flows, this method of operation of Prado Dam makes storm flows available to the Lower Area, as well. In addition, data required by the Santa Ana River Watermaster concerning operations at Prado Dam are collected and provided to the Watermaster by the Corps of Engineers.17 The Santa Ana River Watermaster has entered into a cooperative monitoring program with the U.S. Geological Survey. The U.S. Geological Survey provides stream flow measurements from its gaging stations and water quality data to the Watermaster, and the cost of the monitoring program are shared by the Survey and the parties to the Santa Ana River Judgment. Most of the stream flow measurements used by the Santa Ana River Watermaster in monitoring the operation of the Santa Ana River Judgment come from the U.S. Geological Survey.18 Additional data on water quality, used to adjust the base flow measurements, are provided to the Santa Ana River Watermaster by the California Department of Water Resources, the Riverside and Corona City Sanitation Departments, and by the Inland Empire Utilities Agency (the current name of the agency originally formed as Chino Basin Municipal Water District). The U.S.  Geological Survey, the California Department of Water Resources, and the City of Riverside take “grab samples” of water throughout the year and provide water quality data based on analyses of these samples to the Watermaster.19 After the lawsuit, base flow at Riverside Narrows and Prado Dam recovered. As mentioned above, base flow at Prado Dam had diminished through the dry cycle after 1945. It rose gradually in the 1960s and 1970s. It then rose dramatically in the 1980s and 1990s, as the urbanization of the upper area led to (a) an increase in the impervious land surface in the upper area and thus greater runoff to flood-control channels and streams, and (b) an increase in discharges reaching the river from upper-area wastewater treatment plants. Base flow at Prado Dam has remained well above the quantity required by the Judgment – in 2017–18, for example, the required base flow was 34,000 acre-feet but the actual base flow was 65,438 acre-feet. At the end of 48 years of operation, Inland Empire Utilities Agency and Western Municipal Water District of Riverside County had a cumulative credit to their Base Flow obligation at Prado Dam of 3,616,331 acre-feet.20 Similar results have resulted at Riverside Narrows. From the mid-1940s to the mid-1960s base flow at Riverside Narrows declined. Subsequently the base flow grew significantly for the same reasons as base flow at Prado Dam. In water year  Santa Ana River Watermaster (1983) Annual Report of the Santa Ana River Watermaster for the Water Year 1981–82. Orange, CA: Santa Ana River Watermaster, p. 13. 17  Ibid., p. 4. 18  Ibid., p. 2. 19  Ibid., p. 4. 20  Santa Ana River Watermaster, Forty-Eighth Annual Report of the Santa Ana River Watermaster, for the Water Year 2017–18. 16

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2017–18, for example, the required base flow at Riverside Narrows was 12,420 acre-feet and the actual base flow was 28,378 acre-feet. After 48 years of operation, San Bernardino Valley Municipal Water District had a cumulative credit to its Base Flow obligation at Riverside Narrows of 1,349,891 acre-feet.21 Clearly the Judgment and its administration have succeeded in assuring minimum inflows to Orange County from the three upper-area districts and their service areas. At the time of the Judgment, however, it was not obvious that the guarantee of flows to Orange County would be met easily. In Chino Basin at least, the Santa Ana River Judgment was an impetus to the serious efforts in the 1970s to construct and implement a groundwater management regime.

References California Department of Water Resources. (1970). Meeting water demands in the Chino-Riverside area. Appendix A: Water supply (Bulletin No. 104-3). Sacramento, CA: State Printing Office. Cooper, E. (1968). Aqueduct empire. Glendale, CA: Arthur H. Clark Co. French, J. J. (1972). Ground-water outflow from Chino Basin, Upper Santa Ana Valley, Southern California  (U.S.  Geological Survey Water-Supply Paper 1999-G). Washington, DC: U.S. Government Printing Office. Garrett, A.  A., & Thomasson Jr., H.  G. (1949). Ground-water outflow from the Chino Basin, California, and the controlling geologic and hydrologic conditions (U.S. Geological Survey Open-File Report 49-72). Scott, M.  B. (1977). Development of water facilities in the Santa Ana River basin, 1810–1968  (U.S.  Geological Survey Open-File Report 77-398). Menlo Park, CA: U.S. Geological Survey. Trager, S. M. (1988). Emerging forums for groundwater dispute resolution in California: A glimpse at the second generation of groundwater issues and how agencies work towards resolution. Pacific Law Journal, 20(1), 31–74.

21

 Ibid.

Chapter 6

Adjudication and the Creation of a Chino Basin Governance Structure

The Chino Basin is the most complex and sophisticated adjudication yet devised. – Lipson, 1978: 83

Abstract  This chapter recounts the efforts to address groundwater management in Chino Basin after the Santa Ana River Judgment. That effort required the establishment of processes for making decisions and enforcing them. Groundwater users and others created a Chino Basin Water Association and began discussing how to assign rights and limit groundwater use. They negotiated a Chino Basin groundwater management regime, drawing upon from other southern California groundwater basins. There were innovations in the Chino Basin adjudication, but the underlying legal rationale for the suit remained the same – a doctrine known as mutual prescription. As the Chino Basin case moved to court, however, the California Supreme Court issued a decision that significantly undermined the mutual prescription approach, forcing changes to the design for groundwater management in Chino Basin. The revised agreement was approved by the court in the 1978 Chino Basin Judgment. Keywords  California · Chino Basin · Groundwater · Adjudication · Mutual prescription · Stipulation · Chino Basin Municipal Water District · Chino Basin Watermaster · Pool Committees

Following the Santa Ana River Judgment, essential groundwater management questions pressed to the top of the agenda in Chino Basin. To several local leaders, it became clear that some combination of pumping restraint and groundwater basin replenishment, plus some other possible measures, would be needed to meet the guarantees that the Upper Area owed the Lower Area. One thing that was missing was some structure of decision making to create and enforce those needed

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_6

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arrangements. Following the example of neighboring basins in Los Angeles County, several Chino Basin groundwater users began discussion and then negotiation over an adjudication of pumping rights that could facilitate the restraint of groundwater use and provide a mechanism for funding a replenishment program. Those negotiations produced a couple of innovations that represented advances on the neighboring adjudications, although the underlying legal rationale for the suit remained the same – a doctrine known as mutual prescription. However, just as the Chino Basin case moved to court, the City of Los Angeles was challenging the validity of that doctrine in an adjudication of groundwater pumping in the San Fernando Valley. Los Angeles prevailed on appeal to the California Supreme Court, which forced some last-minute adjustments to the Chino Basin settlement and its governance structure. This chapter concludes with a summary and analysis of the judgment reached in the Chino Basin.

6.1  Beginning the Negotiation Process In Chino Basin, the issue of managing, conserving and using their water supplies moved to the forefront as the Santa Ana River adjudication proceeded through the 1960s. Basin water users remained overwhelmingly dependent on their local groundwater basin for their water supply. According to the California Department of Water Resources, in the mid‑1960s, the water supplied to the Chino‑Riverside area was 70% from groundwater, 18% local imports from the Bunker Hill‑San Timoteo area, 6% from surface diversions, and 6% imported supplies from MWD.1 Assuming that most of the local imports from the Bunker Hill‑San Timoteo area on the other side of the San Jacinto Fault were used in and around Riverside, water users in Chino Basin probably depended on groundwater for 80% or more of their water supply in the 1960s. The long‑range stability of this situation was in question. Chino Basin was in a continuing state of overdraft. By the end of the 1960s the estimated groundwater yield of Chino Basin was being overdrawn by an amount somewhere between 25,000 and 50,000 acre‑feet per year. The consequences of overdraft were longer pumping lifts and higher water production costs for Chino Basin water users, and the loss of hundreds of thousands of acre‑feet of ground water in storage – which also created a large amount of available underground water storage capacity. Land subsidence due to the falling groundwater levels was another possibility, especially in and near the areas of greatest groundwater decline. Yet, movement toward increased use of imported water supplies remained slow. In general, Chino Basin water users remained reluctant to reduce their reliance on the local groundwater supply, which remained substantially less expensive than imported water from MWD. From neighboring groundwater basins, Chino Basin

 California Department of Water Resources, 1970, p. 78.

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water users and water agencies had learned that even under overdraft conditions, water users would reduce reliance on local groundwater and pay for greater amounts of imported water only when access to groundwater was limited by some sort of management program. Discussion of the development of some manner of Chino Basin management plan was facilitated by the Santa Ana River Judgment, by the area’s heavy dependence on an overdrafted groundwater supply, and by the presence of the overlying municipal water districts that were MWD member agencies with access to imported water supplies. Still, this confluence of circumstances could not by itself spark action. Some institutional mechanism for convening water users and was needed – a new water users’ association, the Chino Basin Water Association, formed in the 1960s during the Santa Ana River litigation.2 The Chino Basin Water Association and the Chino Basin Municipal Water District became the focal organizations in the discussion of a Chino Basin management plan (Lipson, 1978: 75). The Chino Basin Municipal Water District had represented the largest portion of the basin and its water producers during the Santa Ana River lawsuit, as well as on the resulting Santa Ana River Watermaster. The attorney for Chino Basin Municipal Water District, Donald Stark, played a central leadership role in the negotiations that ensued. Initial negotiations were unsuccessful. Chino Basin Municipal Water District proposed the idea of using an assessment against all water production (a “gross pump tax”) to fund studies toward the development of a management plan, and for purchases of replenishment water as part of an adjudicated settlement (Lipson, 1978: 75–76). This idea met opposition from the numerous agricultural water users in the Chino Basin. These producers had the longest history of use in the basin and claimed their water rights based on their ownership of the overlying land. Furthermore, they were not used to, equipped to, or inclined to measure and report their groundwater production, which was an essential element of a fee on pumping. In the prevailing view of the agricultural users, increased demands on the basin’s groundwater supply had come primarily from newer users – the cities, water companies, and water districts – who had increased their production of water to serve the growing population that had accompanied the urbanization of the area. Those users’ groundwater rights, as appropriators under California water law, were inferior to agricultural users’ rights as overlying landowners. To the agricultural producers, using an equal tax on all water production to purchase replenishment water to offset the overdraft shifted onto them replenishment costs that the appropriators should have to pay. Investigation of a wider range of management plans ensued, led by the Chino Basin Water Association and the staff of the Chino Basin Municipal Water District. In December 1970, the Chino Basin Municipal Water District staff prepared “Study Documents on Proposed Basin Management Plan,” and submitted them to the Chino

2  As noted in Chapter 4, the old Chino Basin Protective Association had dissolved after the creation of the Chino Basin Water Conservation District in 1949.

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Basin Water Association. The association’s Executive Committee and Board of Directors studied them for 9 months. The Chino Basin Municipal Water District also offered to furnish staff assistance for a feasibility study of developing a basin management program within the context of a stipulated adjudication to define rights and limit production within the basin. A Negotiating Committee was formed to review management possibilities for the Chino Basin. The Negotiating Committee consisted of the 13 members of the Executive Committee of the Chino Basin Water Association, a representative from the State of California (for the correctional institutions located within the basin), a representative from Pomona Valley Water Company, a representative of agricultural producers in the San Bernardino County portion of Chino Basin, and a representative of agricultural producers from the Riverside County portion of Chino Basin. The Negotiating Committee began with some baseline principles of agreement. Based on a report from the Chino Basin Municipal Water District staff, the Committee noted that Chino Basin was in overdraft in the magnitude of least 50,000 acre‑feet per year and that this magnitude of overdraft could be expected to double in the next 20 years. Other principles were to restrict the use of ad valorem property taxes to the funding of capital construction projects, and to not use them for water purchases. A gross assessment on all water production in the basin would pay for Watermaster administrative expenses and for increases in ground water in storage (i.e., things perceived as benefiting all producers). A net assessment on groundwater production in excess of a pumper’s determined rights would pay for replacement water purchases.

6.2  Reviewing the Basin Management Possibilities A 1971 working memorandum of the Negotiating Committee reviewed the management options used in neighboring groundwater basins. The “mutual prescription” approach to adjudicating water production rights by stipulated judgment in the Raymond, West, and Central basins in Los Angeles County formed a basic premise for the plan to determine water production rights in the Chino Basin. How to finance basin replenishment operations drew upon the programs used in the Central and West basins and the Orange County Water District. Possibilities for organizing the replenishment and ongoing management and monitoring of Chino Basin drew upon examples from the Central and West Basin Water Replenishment District,3 the Orange County Water District, and the emerging plan for the management of the Main San Gabriel Basin adjacent to the Chino Basin in Los Angeles County (Lipson, 1978: 77). Chino Basin water producers might have foregone adjudication and simply financed basin replenishment operations using a gross pump tax. The producers

 Now named the Water Replenishment District of Southern California.

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rejected this alternative, both for the reasons mentioned above that thwarted the first proposal for a gross pump tax and because they “wanted vested rights protected and accorded an economic value” (Lipson, 1978: 75). The Negotiating Committee working memorandum observed: “Adjudication appears to offer the only decisive method of meeting and resolving the question of ownership and control of unused ground water storage capacity.” That adjudication was to be based on the “mutual prescription” doctrine used in other basins, with managerial control reposed in a watermaster under continuing jurisdiction of the court. The memorandum also offered some procedural guidelines for an adjudication. The Negotiating Committee sought to reap the advantages of a stipulated adjudication while avoiding some of the difficulties that had been experienced by water users in other basins: A major procedural premise for the adjudication technique should be: adjudication will be undertaken only after agreement has been reached by a majority (perhaps 75 to 80%) of all production rights in the basin. On this basis, it should be possible to proceed to a decree without major adversary litigation. The examples of expense, time and waste in poorly managed adversary water litigation are legion. However, the few instances of carefully planned stipulated adjudications indicate that this course can be followed without major adversary proceedings. Basically, the approach should be to develop a plan for implementation of the management program which would be incorporated in the form of a stipulated judgment. Only after the form of judgment had been essentially agreed upon would the complaint be formally filed and legal proceedings undertaken. In this way, the trial time should be restricted to a matter of days. After the general agreement on approach to the solution, those parties willing to do so should furnish their attorneys for participation in a committee organization to work quickly on finalization of the stipulated judgment.... Since the fact of overdraft in Chino Basin is long standing and of general notoriety, no major factual or hydrologic issue should be involved.4

The 1971 Memorandum to the Negotiating Committee included an Appendix which contained a study draft of a stipulated judgment. The study draft used the assumption that the Chino Basin Municipal Water District would act as plaintiff bringing the adjudication, with all known producers joined as defendants. The memorandum also laid out assumed prescriptive rights of parties, based in part on water production from 1953 through 1969 reported by producers to the State Water Rights Board under the 1955 Recordation Act5. It included a table showing the annual reported production figures for pumpers with annual rights in excess of 1000 acre‑feet per year. There were 33 such parties listed, accounting for 59.7% of the assumed 170,000 acre‑feet of estimated production rights in the basin. Their combined reported annual production ranged from a low of 76,248 acre‑feet in 1958 to a high of 117,051 in 1961.

 Negotiating Committee working memorandum 1971, p. 36 (italics added).  This state law, enacted after the Raymond Basin adjudication and during the West Basin adjudication, was intended among other things to ease the fact-finding burden of future adjudications by establishing a database of reported groundwater production. 4 5

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With respect to financing the management plan in Chino Basin, the Negotiating Committee remained largely confined to the baseline agreement concerning the use of ad valorem revenues for capital projects, a gross pump tax to finance programs benefiting all water producers, and a net pump tax to finance purchases of replenishment water to replace water pumped in excess of adjudicated rights. The Negotiating Committee also recommended eliminating “minimal producers” from reporting requirements and from assessments on their production. This addition followed proposals under consideration for management of the Main San Gabriel Basin, and was intended to avoid problems that had been encountered by the Central and West Basin Water Replenishment District in billing and keeping track of numerous producers with production rights of one or two acre‑feet per year.6 With respect to the mechanism for monitoring the judgment and setting basin management policy, the Negotiating Committee was obviously watching the developments in the pending Main San Gabriel Basin adjudication closely. They noted that a broadened concept had been developed there of how to use of a stipulated decree and physical solution. Under this design, the conception of the Watermaster's function had expanded into representative and policymaking functions, not merely the administration of a decree. The use of a discretionary, policy‑making Watermaster could give the parties greater opportunity to develop, modify, and administer the management plan.7 The negotiating committee considered two principal methods for operationalizing this policy‑making watermaster mechanism that was unfolding in the Main San Gabriel Basin. One alternative was titled the “political approach,” which was to empower one of the special districts within the Chino Basin to act as the basin management authority, along the lines of the Orange County Water District’s role in managing groundwater supplies there. The other alternative was to form a water replenishment district along the lines of the Central and West Basin Water Replenishment District in Los Angeles County. In its evaluation of the “political approach,” the Negotiating Committee noted its perceived inconsistency with the premise of a firm determination of property rights through adjudication. While acknowledging that the “political approach” was being successfully employed in Orange County, the Committee observed that it was “premised on a ‘utility’ approach to water and water resources, as distinct from the traditional ‘private property’ approach observed elsewhere in the State.”8 The Negotiating Committee's evaluation of the “political approach” also raised the difficulties inherent in the fact that Chino Basin is divided among three existing municipal water districts because the basin extends into three counties. The Committee acknowledged, “Practical politics indicate the improbability that any existing political entity would be able to annex territory across county lines to cure

 Ibid., p. 37.  Ibid. 8  Ibid., p. 34. 6 7

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this defect.”9 One conceivable alternative was the formation of a joint powers agency by the three overlying municipal water districts, but this had its difficulties as well: Because of the substantial difference in magnitude of interest between the three districts, there might be some considerable problem with regard to voting and representation on the managing board of such a joint powers agency. Such a joint powers agency could appoint the district with the major interest in the basin (CBMWD) as the managing agency. Whether this is a realistic assumption (particularly as to WMWD, which has a separate interest in Chino Basin outflow under the Orange County settlement) might well be questioned. In any event, administration of a strong management program in this manner portends many problems.10

Financing under a joint powers approach would need to find means to integrate ad valorem taxing powers of existing overlying water districts with pump tax powers for basin management plan. This would be especially challenging in Pomona Valley Municipal Water District and Western Municipal Water District, only small parts of which overlie Chino Basin. With regard to the replenishment district approach, the Committee described three difficulties. First, the Central and West Basin Water Replenishment District had been the only one formed under the 1955 Water Replenishment District Act11, and as a consequence, “the act has become a ‘captive act’ of that one district and any amendments or modification of the act would require concurrence. (The same is true of the Metropolitan Water District Act and the County Water Authority Act.)”12 Another difficulty was “the current reluctance of the Local Agency Formation Commission (LAFCo) and the voters to approve the creation of any additional overlapping special districts  – with duplication of taxing powers and functions.”13 Furthermore, any attempt to create some other type of special act district to perform these functions for Chino Basin alone was likely to run into current opposition in the Legislature to the creation of more such districts.14 After consideration of these alternatives, the Committee concluded in favor of the management approach that was emerging in the Main San Gabriel Basin, which was management by a watermaster under the continuing jurisdiction of the court. They viewed this alternative as the one best suited to overcoming the jurisdictional complexity of Chino Basin: The Watermaster, as the managing agency, has the ability to allocate costs with relation to pumping and to make other basin‑wide management decisions. Political boundaries no longer are of consequence. The exterior geographic boundaries of the Watermaster's jurisdiction are defined by the hydrologic unit adjudicated.15

 Ibid., p. 33.  Ibid. 11  This remains the case. 12  Ibid., pp. 33–34. 13  Ibid. 14  Ibid., p. 34. 15  Ibid., p. 37. 9

10

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Furthermore, the Committee concluded that the use of a watermaster with policy‑making powers, especially the power to set an “operating safe yield” that would account for changes in physical conditions from year to year, would improve the flexibility and adaptability of the basin management program.16 The Committee also concluded that control and management of the basin’s storage capacity required both some sort of determination of rights and some manner of representation of water users in the making of storage decisions.17 The Committee acknowledged that it was conceivable that a public agency could be designed and equipped with adequate basin management powers, but that no public agency would fully embody a strongly desired characteristic – self‑governance of the basin by its water users and rights holders: The basic distinction is in the control of the exercise of discretion by the managing agency. In the case of the political solution, control resides in the entire community and is exercised through the registered voters. This compares to the adjudicated solution wherein the control lies in the court, subject to petition and appeal from the producers and water right owners.18

Clearly, the water producers on the Negotiating Committee were interested in a basin management program that would be under their control.

6.3  Moving the Process into Court After the consideration of alternatives and the development of this management model for the Chino Basin in late 1971, the negotiation process slowed for a while. It was revived in 1974 with the encouragement of the cities and the Chino Basin Municipal Water District. During 1974, a “Memorandum of Agreement on the Chino Basin Plan” was reached within the Chino Basin Water Association and signed. It called for the Chino Basin Municipal Water District to proceed with the basin adjudication and with the remaining studies needed to develop a practicable management plan, in consultation with the Association. It further provided for the financing of the studies and the development of the management plan using a temporary gross pump tax. The authority to levy a gross pump tax came from the California Legislature. State Senator Ruben S. Ayala of Chino, a very active member of the State Senate on water issues, introduced Senate Bill 222 in January 1975. S.B. 222 authorized the levying of a $2 per acre‑foot pump tax for three years. The revenue was to be used to fund studies to further determine Chino Basin hydrology, to verify the past production of Chino Basin groundwater users, and to study the basin’s socio‑economic characteristics with a focus on the changing nature of its land and water use. The legislation also required the Chino Basin Municipal Water District’s Board of  Ibid.  Ibid., p. 35. 18  Ibid., p. 34. 16 17

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Directors to appoint an advisory committee of water producers to develop the details of the Chino Basin management plan. Senator Ayala’s bill passed the Legislature and was signed by Governor Brown on June 28, 1975. Its pump tax provisions were made effective to begin with the 1974–1975 fiscal year.19 The advisory committee called for by the legislation was formed, and it resumed the process of studying management alternatives and water conditions within Chino Basin. The advisory committee met regularly, with over 100 names on the mailing list throughout the negotiation and study period. Producer subcommittees were established within the advisory committee to consider the issues of how to allocate production rights and basin management costs among the different types of water producers within the Basin. The three producer subcommittees represented were: agricultural water users with water rights appurtenant to their ownership of overlying lands within the Basin; non‑agricultural (primarily industrial) water users with water rights appurtenant to their ownership of overlying lands; and water purveyors (primarily cities, water companies, and water districts) with appropriative water rights acquired by actual diversion and use (Lipson, 1978: 75–76). The three subcommittees came to be known as the Overlying (Agricultural) Pool Committee, the Overlying (Nonagricultural) Pool Committee, and the Appropriative Pool Committee.20 To spur the resolution of the remaining issues outstanding, the Board of Directors of the Chino Basin Municipal Water District filed a complaint on January 2, 1975, thus formally initiating the adjudication process (Lipson, 1978: 77). The adjudication was known as Chino Basin Municipal Water District v. City of Chino et al.21 The complaint sought “an adjudication of water rights, injunctive relief and the imposition of a physical solution.”22 Adjudication of water rights in the Chino Basin was certain to be complex. There were 1300 parties named in the adjudication, and at one point as many as 93 attorneys involved.23 Thus, the Chino Basin adjudication promised to involve more pumpers and lawyers than any of the previous groundwater basin adjudications. Nevertheless, early agreement among the parties and the negotiating committee members on the fact of the presence of the overdraft in Chino Basin and on the basic theory of the adjudication and management structure offered the prospect in January 1975 of a relatively smooth process of resolution of this large and multi‑party adjudication. Within a few months, however, it became clear that the process would not be as smooth as hoped.  Chino Basin Watermaster, First Annual Report of the Chino Basin Watermaster, Fiscal Year 1977–78, p. 1. 20  Chino Basin Watermaster, First Annual Report of the Chino Basin Watermaster, Fiscal Year 1977–78, p. 2. 21  Civil Case No. 164327 in the Superior Court of the State of California in and for the County of San Bernardino. It was later renumbered as Case No. RCV 51010. 22  Judgment, Chino Basin Municipal Water District v. City of Chino et  al.,1978, p.  1 [hereafter “Chino Basin Judgment”]. 23  Peters interview, July 25, 1988. 19

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6.4  The Impact of the San Fernando Decision From their initiation at the end of the 1960s, the negotiations toward a Chino Basin management plan had been premised on the use of the “mutual prescription” doctrine, which had been developed in the Raymond Basin adjudication in the 1940s and used as the basis of stipulated judgments in the other basin adjudications to which the Chino Basin negotiators referred. On May 12, 1975, four months after the Chino Basin adjudication began, the California Supreme Court issued its decision in City of Los Angeles v. City of San Fernando et al. That ruling reversed the trial court’s application of a “mutual prescription” solution to the determination of water rights in the San Fernando Valley groundwater basin. The San Fernando decision precipitated an entire restructuring of the planned stipulation in the Chino Basin case.24 Three key elements of the San Fernando decision affected the planned determination of rights in the Chino Basin. First, the California Supreme Court had ruled that the water rights of overlying landowners could not be reduced to a specific quantity, and were limited only by “beneficial use” and the “correlative rights” of other overlying landowners. Therefore, the water rights of overlying landowners could not be lost by “prescription,” i.e., by adverse use, because it would be impossible to establish the point at which one user’s production had encroached upon another user’s right if the latter right were not quantifiable. Second, while overruling the trial judge’s imposition of the “mutual prescription” solution upon the parties, the California Supreme Court had not eliminated the prospect that water users might agree to such a solution among themselves. It had, however, eliminated the prospect that any overlying landowner could be made part of a “mutual prescription” plan involuntarily (Lipson, 1978: 76). If any overlying landowner could refuse to go along with a stipulation limiting his or her groundwater right on any basis other than the “correlative rights” doctrine, the incentive for overlying users to cooperate in devising a “mutual prescription” stipulation was much diminished. Third, the California Supreme Court’s San Fernando decision also held that a determination of water rights by “mutual prescription” could not be imposed upon the public water purveyors (such as cities and public water districts) within the basin, because Section 1007 of the California Civil Code barred the acquisition of a prescriptive rights against such government bodies. These aspects of the California Supreme Court’s decision in the San Fernando case affected the prospects for groundwater basin adjudications anywhere, but especially in a case such as Chino Basin because of the large proportion of water rights in the basin exercised by overlying landowners. In the Los Angeles County adjudications, for example, including the Main San Gabriel Basin adjudication that was still ongoing at the time of the San Fernando decision, most land and water use had already converted to urban and suburban uses by the time the adjudication process was underway, so appropriators (public and private water purveyors) held the vast majority of water rights. By contrast, in Chino Basin in 1975, the overlying 24

 Stetson interview, July 26, 1988.

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agricultural and non‑agricultural water producers still accounted for a majority of groundwater production. Effective basin management could not reasonably be implemented without them. “Overall, San Fernando made the determination of overlying and appropriative rights highly uncertain” (Lipson, 1978: 76). The appropriators in Chino Basin, facing the greatest problems of growing water demands, continued to advocate some determination of pumping rights and a coordinated program for the purchase of supplemental water, in spite of the uncertainty created by the San Fernando decision. They were also willing, in the aftermath of that decision, to bear a considerable share of the costs of a management program in the Chino Basin, for two reasons. First, they could spread the costs of basin management across their growing numbers of customers more readily than could the agricultural and other water users. Second, any resolution of the overdraft problem in Chino Basin that provided them with firm rights to at least part of the local groundwater supply left them better off than having to shift entirely to surface and imported water supplies and surface water storage and distribution systems (Lipson, 1978: 78). The appropriators were especially interested in a resolution that would accommodate the agricultural interests for the present and near future, while providing for the future movement of water from agricultural to urban uses. Everyone involved in the negotiations understood that, while the San Fernando decision advantaged the negotiating position of the overlying landowners relative to the appropriators, the longer-term trends in Chino Basin were clearly away from agriculture and toward continued urbanization Movement toward a Chino Basin stipulation therefore continued even after the San Fernando decision. The basic direction of that movement reflected the organizational structure of the negotiating committees and the advisory committee – that is, rights to the basin’s groundwater supply were divided up by type of production. The discussion began with a simple division between the rights of agricultural users and the rights of non‑agricultural users (the industrial users plus the appropriators). The industrial users rejected this initial design, however, as they could benefit at least to some degree from their status as overlying landowners and thus were unwilling to bear the costs of basin management in quite the same measure as the appropriators (Lipson, 1978: 78–79). The three‑pool approach that originated as a way of organizing the negotiation process became the new framework for the development of the stipulated judgment in Chino Basin. The industrial users constituted the Overlying (Nonagricultural) Pool, the agricultural users plus the State of California were members of the Overlying (Agricultural) Pool,25 and the public and private appropriators were in the Appropriative Pool. What had begun as an effort to reach a mutual prescription solution subsequently revolved around creating a solution that would offer each pool benefits that exceeded the costs they would experience.

 As has been mentioned previously, the State of California is the owner of a large amount of land within Chino Basin. Its principal land holdings are for correctional institutions, and it has engaged in some farming on those lands.

25

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The appropriators agreed to bypass the language of “mutual prescription” in favor of a stipulated agreement that all of their appropriative rights in the safe yield of the basin were of equal priority.26 Because California groundwater rights law makes overlying rights superior to appropriative rights, the appropriators would be entitled only to whatever share of the basin’s “safe yield” was left over after all overlying rights  were satisfied. Two methods were used to address this problem, both of which were adapted from the physical solution in the Main San Gabriel Basin adjudication: first, the Chino Basin agreement incorporated the concept of “operating safe yield” in order to make the year‑to‑year determination of pumping rights more flexible and avoid locking appropriators into an absolute zero‑sum battle with overlying water users; second, appropriators were assigned “pumpers’ shares” in the operating safe yield rather than fixed amounts of rights, so that each appropriator’s groundwater use could fluctuate with the basin’s physical conditionsn. Water production by the Overlying (Nonagricultural) Pool was small relative to the total yield of the basin. The nonagricultural users could be guaranteed rights equaling virtually all of their production, and a smaller share of the basin management costs than paid by the appropriators. This arrangement secured their support. The Overlying (Agricultural) Pool members, who accounted for the lion’s share of water rights in the basin, had to be convinced to agree to an allocation of the basin’s safe yield that would leave a substantial portion of groundwater available for the appropriators. Their inducement was the arrangement of a division of safe yield that would be just high enough that agricultural users would rarely (if ever) pay net assessments for basin replenishment. The allocation of the remainder of the basin’s safe yield to the appropriators would mean that the appropriators (whose production had been increasing) would be more likely to have to pay net replenishment assessments. However, it was expected that the agricultural users would also benefit from those basin replenishment activities. Therefore, the agricultural users could go along with a share of the basin’s safe yield that would be somewhat smaller than they would have received under a strict application of groundwater rights law in exchange for benefitting from a basin replenishment program that would be paid for primarily by other water producers (Lipson, 1978: 78–79). Clearly, these arrangements were all compromises. Thomas McPeters, one of the attorneys who participated in the negotiations, recalled years later that the process “was the greatest meet and confer proceeding that I have seen. The attorneys met in subcommittees assigned to issues. The number of parties were in the hundreds.”27 He added, “Every provision is a compromise and was hashed over by these people.”28 Donald Stark, the attorney for Chino Basin Municipal Water District, organized these multiple discussions and kept the process moving forward.

 Chino Basin Judgment, p. 7; also Lipson (1978: 76–77).  Reporter’s Transcript of Oral Proceedings re: Motion to Continue Hearing Date, Motion to Disqualify Counsel, and Motion to Appoint Nine-Member Panel, June 18, 1996, at p. 86. 28  Ibid., at p. 87. 26 27

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As noted the San Fernando decision and its implications for the determination of water rights of overlying owners complicated the determination of water rights across different types of users. On the other hand, it did facilitate the resolution of one potential source of dispute within the Chino Basin agricultural community. While the decision created uncertainty, it also helped resolve problems between large and small farmers that had stymied previous negotiations and aided elimination of some inequities that might have resulted from strict application of the Raymond Basin formula. For example, strict application of mutual prescription would have given some farmers with large patterns of historic use large rights and new farmers none.... The court’s determination preserving overlying rights put all farmers in the same boat. It eliminated the windfall that might have gone to some of them and helped pave the way for a settlement between them. The solution to this problem was not to specify rights for individual agricultural producers and to work out a plan for equitable distribution of assessments among them (Lipson, 1978: 76–77).

As these arrangements within and between the producers’ pools were devised, the emerging physical solution for the Chino Basin gathered support. With perhaps a little extra encouragement from the severity of another drought in 1976–1977, the process culminated in a stipulated judgment at the end of 1977 (Lipson, 1978: 78–79).

6.5  The Chino Basin Judgment That stipulation was agreed to by a majority of the parties in the case, who held a majority of the water rights at issue in the case.29 A brief trial began on December 16, 1977, centering around issues concerning some non‑stipulating parties. The final Chino Basin Judgment was entered and signed by Judge Howard B. Weiner on January 27, 1978, three years after the filing of the original complaint. The effective date of the physical solution contained within the Judgment was July 1, 1977, the beginning of the 1977–1978 fiscal year. The Chino Basin judgment declared the Basin Safe Yield to be 140,000 acre‑feet per year. The parties stipulated that water production from the basin exceeded this safe yield, and that the basin had been in a state of overdraft for each of the five years preceding the beginning of the adjudication. The Judgment established water rights in the Basin Safe Yield for the Overlying (Agricultural) Pool and Overlying (Nonagricultural) Pool, limiting them in the aggregate. The aggregate overlying rights of the Overlying (Agricultural) Pool, including the rights of the State of California, were specified to be 82,800 acre feet per year, but were stated to be limited to 414,000 acre‑feet in any five consecutive years in order to provide flexibility for the agricultural water users to respond to physical conditions in the Basin. Individual rights of the 1178 named Overlying (Agricultural) Pool producers were not specified, so all Overlying Agricultural producers were within their production

29

 Chino Basin Judgment, p. 2.

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rights as long as their collective production did not exceed 414,000 acre‑feet in any five consecutive years.30 The overlying rights of the producers in the Overlying (Nonagricultural) Pool were specified to total 7366 acre‑feet per year. These rights were also individually determined for each of the 12 producers in this pool. Three of the 12 producers held the majority of the rights in the Nonagricultural Pool: Kaiser Steel Corporation (2930.274 acre‑feet), Sunkist Orange Products (1873.402 acre‑feet), and Southern California Edison Company (982.499 acre‑feet). Following these limitations on the production rights of the overlying producers, the Judgment stated that no portion of the safe yield of Chino Basin remained available to satisfy any other unexercised overlying rights, and that any unexercised overlying rights had been lost. The Judgment further specified that the overlying rights granted in the Judgment were appurtenant to land ownership and could not be transferred apart from the land.31 This appurtenancy qualification represents one of the real losses in resource use efficiency resulting from the San Fernando decision. In previous basin adjudications based on the mutual prescription doctrine, all production rights had been determined, quantified, and limited, and all production rights had become transferable, which allowed any producer with adjudicated rights to lease, sell, or exchange their rights. As we have seen, the desire to have determined, quantified, transferable water rights had been an important factor in Chino Basin water producers’ decision to pursue an adjudication. After the San Fernando decision’s reiteration of the status of overlying water rights in California groundwater law, this desire was thwarted for the owners of rights to most of the safe yield of Chino Basin. The Chino Basin Judgment listed 22 Appropriative Pool producers. The appropriators’ rights, all of equal priority to one another, were expressed as percentages of the Basin Safe Yield remaining after the satisfaction of overlying rights.32 The appropriators’ shares of the Basin Safe Yield totaled 49,384 acre‑feet per year. Three appropriators accounted for over half of this amount: the City of Ontario (20.742%), the City of Pomona (20.454%), and Fontana Union Water Company (11.666%). However, there were four provisions in the Judgment to enlarge the allowed pumping by the Appropriative Pool  – one immediately and the other three over time. The first provision allowed for 200,000 acre-feet of “controlled overdraft” over a 40-year period, or 5000 acre-feet per year of additional allowed pumping. This extra amount was apportioned among the Appropriative Pool members by the same percentages as their respective shares of the safe yield. In effect it enlarged the allowed pumping of the Appropriative Pool from 49,384 acre‑feet per year to 54,384 acre-feet per year for a 40-year period. This allowance helped to cushion the financial effects of the Judgment on the appropriators, exempting an additional 5000

 Chino Basin Judgment, Exhibit C, pp. 36–59.  Chino Basin Judgment, pp. 6–7. 32  Ibid. at 7. 30 31

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acre-feet per year of pumping from the replenishment assessment or “net pump tax.” Its expiration after 40 years reflected the expectation that, by then, appropriators would have gained additional safe yield due to the conversion of land and water use from agriculture, as described below. The second provision allowed the Watermaster to set an annual “operating safe yield,” which allowed the Watermaster to take basin conditions into account each year and apply the appropriators’ shares to a somewhat larger or smaller figure. The third provision was that any subsequent modification to the Judgment adjusting the safe yield of the basin (i.e., altering the 140,000 acre-feet per year figure) would not change the shares belonging to the two overlying pools and would be debited or credited solely to the Appropriative Pool. The fourth provision for enlarging the pumping rights of appropriators over time allowed for the reallocation of unpumped safe yield by the Overlying (Agricultural) Pool to the Appropriative Pool once five consecutive years had passed in which the Agricultural Pool had produced less than their share of the basin safe yield. The first priority for any reallocation of unpumped safe yield is to redress any cut in the appropriators’ share of the “operating safe yield” resulting from a redetermination of the Basin Safe Yield. The second priority is to acknowledge land use conversions, and then any remainder may be added to the operating safe yield for the whole Appropriative Pool. The land use conversion process provided for in the 1978 Judgment allows an appropriator serving an area that used to be devoted to irrigated agriculture to report the land use and water service change to the Chino Basin Watermaster. This provision anticipated that, as land in the basin shifted out of agricultural use and into urban use, that land and its new residents would likely come into the service territory of an appropriator. Upon notification by an appropriator that it had begun water service to an area, the Watermaster would verify the change, maintaining a record and account for each appropriator of the total acreage involved and the average annual water use during the previous five‑year period. The Watermaster would then allocate the unused safe yield water, up to half of the average annual amount of water actually applied to those lands during the previous five‑year period. This would allow unused agricultural water rights to “change hands” without really doing so (which would be in violation of groundwater rights law as determined by the California Supreme Court), and to do so at a rate that still reduces overall demand on the basin.33 There were some other rules pertaining to appropriators in the Judgment. Unused appropriative rights may be carried over from one year to the next, and because appropriative rights are not tied to land ownership they can be transferred by sale, lease, exchange or assignment. In addition, appropriators who are favorably situated to do so may contribute to basin replenishment through participation in in‑lieu programs taking surface water and pumping less than their full share of groundwater.

 As described in subsequent chapters, the land use conversion formula has been changed through modifications of the Judgment approved by the Court.

33

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6  Adjudication and the Creation of a Chino Basin Governance Structure

The Watermaster can “purchase” the unpumped groundwater by reimbursing the appropriator at the current rate for replenishment water or for the difference between the appropriator’s cost of supplemental water and the appropriator’s cost of pumping (including production assessments), whichever is less. This arrangement was designed to leave an appropriator and the Watermaster no worse off financially for leaving water underground and taking imported water supplies instead.34 Parties are also allowed to store water in the basin, as long as they have a storage agreement with the Watermaster. In addition, subject to Watermaster approval, parties may transfer stored water to one another (Wildermuth and Kavounas, 2019: 29). These provisions are more significant than they might appear at first glance: the Chino Basin Judgment places the management of both groundwater production and the basin’s storage capacity under the control of the Watermaster. In some other adjudicated basins, the question of who manages the basin’s storage capacity was not resolved in the original judgment and has had to be addressed later – and has in some instances proved highly contentious. In Chino Basin, the Judgment recognizes the Watermaster’s authority to monitor and regulate both the basin’s annual yield and its storage capacity. As alluded to briefly above, the Chino Basin Judgment recognizes another class of groundwater producers known as “minimal producers.” They are defined as pumpers of five acre‑feet or less of water per year. Minimal producers must file production reports and are required to pay an annual five-dollar fee toward the administration of this Judgment, but are exempt from any replenishment assessment as long as annual production remains below the five acre-feet threshold.35 Production assessments, including replenishment assessments, are the financing mechanism for the Chino Basin management program. All producers pay an administrative assessment, which may be levied on production or levied directly against producers without regard to production (as is the five‑dollar fee on minimal producers). The administrative assessment amounts may differ across Pools, however, depending on the portion of the Watermaster’s administrative budget that goes to the administration of the three Pools. Replenishment assessment formulas (and their actual amounts from year to year) vary by production pool. Replenishment assessments are intended to be large enough to cover both the costs of replacement water purchases and the costs of spreading the replacement water purchased. In effect, therefore, they are also large enough to create a substantial disincentive for overpumping, which in turn has stimulated producer efforts (particularly within the Appropriative Pool) to accumulate carry-over credits or acquire water via transfer from other parties in order to cover over-production to the extent feasible. Because there is no quantification of individual production rights among the members of the Overlying (Agricultural) Pool, the Judgment provides for the use of a modified “gross pump tax” to purchase replenishment water for this Pool. If the members of the Overlying (Agricultural) Pool were to collectively over‑pump their

34 35

 Chino Basin Judgment, Exhibit H, pp. 73–77.  Chino Basin Judgment, 1978, Exhibit C.

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share of the Basin Safe Yield (414,000 acre‑feet in a five consecutive year period), the Watermaster would calculate the cost of replacement water to be purchased in the ensuing water year, and divide the cost across every acre‑foot of Agricultural Pool production equally, so that all Agricultural Pool members would pay to replace their collective over‑production.36 Within the Overlying (Nonagricultural) Pool, where production rights are quantified for each producer, members are subject to a replenishment assessment, meaning that each individual producer pays to the Watermaster the full cost of purchasing and spreading the quantity of water over‑pumped by that producer in the previous year. Individual producers in this Pool thus replace their over‑production on an acre‑foot by acre‑foot basis. Within the Appropriative Pool, there was some disagreement about whether to use a “gross pump tax” or a “net pump tax” formula for assessments to replace over‑production (Lipson, 1978: 82). The result was a compromise: some appropriators pay a “net pump tax,” and replace their over‑production on an acre‑foot by acre‑foot basis, while others appropriators use the “15/85” formula. Under the “15/85” formula, 15% of replacement water costs for over‑production are spread across the participating appropriators in the form of a gross pump tax, and 85% of replacement water costs are borne by the individual appropriator(s) who overpumped their share of the operating safe yield. In addition, the Judgment contains provisions for the Appropriative Pool members to be charged a “facilities equity assessment” to finance additional facilities that become needed to import and recharge supplemental water or to make in‑lieu replenishment payments to appropriators who take imported water instead of pumping groundwater. As mentioned above, the Chino Basin Judgment explicitly recognizes the storage capacity of the basin as a valuable resource to be used and managed. The Chino Basin Judgment also opens up the possibility of groundwater storage by persons other than the Watermaster and the parties to the judgment.37 With available underground storage capacity that was estimated at the time of the Judgment to be approximately a million acre‑feet or possibly more, Chino Basin was being considered by both the California Department of Water Resources and The Metropolitan Water District of Southern California as a possible water storage reservoir. Any use of the Chino Basin for the storage of water would have to be under the terms of a signed agreement with the Chino Basin Watermaster, whether by a party to the Judgment or a non-party. Beyond establishing the production rights and the production assessments for the producers and the Pools, the Chino Basin Judgment contains a number of policy statements intended to guide the management program for the basin and the activities of the Chino Basin Watermaster. They include:

 Although provided for in the Judgment, this has never occurred. Agricultural groundwater production has declined significantly since the 1978 Judgment, as described in greater detail in subsequent chapters. 37  Chino Basin Judgment, p. 9. 36

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6  Adjudication and the Creation of a Chino Basin Governance Structure The purpose of these provisions is to establish a legal and practical means for making the maximum reasonable beneficial use of the waters of the Chino Basin by providing the optimum economic, long‑term, conjunctive utilization of surface waters, ground waters and supplemental water, to meet the requirements of water users having rights in or dependent upon Chino Basin.38 A fundamental premise of the Physical Solution is that all water users dependent upon Chino Basin will be allowed to pump sufficient waters from the Basin to meet their requirements.39 Chino Basin is a common supply.... It is an objective in management of the Basin's waters that no producer should be deprived of access to said waters by reason of unreasonable pumping patterns, nor by regional or localized recharge of replenishment water, insofar as such result may be practically avoided. Maintenance and improvement of water quality is a prime consideration and function of management decisions by Watermaster. Financial feasibility, economic impact and the cost and optimum utilization of the Basin's resources and the physical facilities of the parties are objectives and concerns equal in importance to water quantity and quality parameters.40 Watermaster, with the advice of the Advisory and Pool Committees, is granted discretionary powers in order to develop an optimum basin management program for Chino Basin, including both water quantity and quality considerations. Withdrawals and supplemental water replenishment of Basin Water, and the full utilization of the water resources of Chino Basin, must be subject to procedures established by and administered through Watermaster with the advice and assistance of the Advisory and Pool Committees composed of the affected producers. Both the quantity and quality of said water resources may thereby be preserved and the beneficial utilization of the Basin maximized.41 It is essential that this Physical Solution provide maximum flexibility and adaptability in order that Watermaster and the Court may be free to use existing and future technological, social, institutional and economic options, in order to maximize beneficial use of the waters of Chino Basin.42

As these statements demonstrate, the Chino Basin Judgment was far more than a judicial decree assigning pumping rights. Negotiated by the parties themselves, the Judgment was a form of constitutional statement, which included a recognition of mutual interdependence, a declaration of goals, and a commitment to an adaptive program of managing the basin for maximum benefit in light of future changes.

 Ibid. at 23.  Ibid. at 24. 40  Chino Basin Judgment, Exhibit I, p. 79. 41  Chino Basin Judgment, p. 24. 42  Ibid. at 23. 38 39

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6.6  R  eflections on the Chino Basin Case and California’s Adjudication Practice The Chino Basin adjudication exemplified a set of changes that had occurred from the 1940s to the 1970s in groundwater basin management policies, institutional arrangements for groundwater management, and the California law of water rights in the decades since Pasadena v. Alhambra, the Raymond Basin adjudication. The basic policy approach to groundwater basin management changed dramatically from Raymond Basin to Chino Basin. The early adjudications (Raymond, West, and Central Basins) reflected the prevailing view of their time, which was that any overdrafting of a groundwater basin was detrimental, that groundwater extractions should be curtailed to match a fixed average annual safe yield, and that groundwater basins ideally should be kept as full as possible. During the San Fernando Valley Basin adjudication in the 1960s and 1970s, the conjunctive‑use concept of “regulatory storage capacity” was added to basin management policy. This concept reflected a new view that groundwater basins should not necessarily be kept as full as possible, that groundwater storage capacity should be managed dynamically rather than being maintained statically, and therefore fluctuations of groundwater levels within a certain range were not only allowable, but desirable. In the Main San Gabriel Basin adjudication that overlapped in time with the Chino Basin case, the basin management program incorporated the concept of an “operating safe yield” being determined from year to year based on physical conditions. The Chino Basin management program incorporated both the concepts of operating safe yield and managing basin storage capacity. Subsequently, as is described in chapters to follow, Chino Basin management evolved toward a recognition that “filling the basin” may not be beneficial for water quality as well as conjunctive use reasons. From one adjudicated basin to another in California, the institutional arrangements for governing and monitoring groundwater underwent changes of similar magnitude (Blomquist, 1992). In the Raymond Basin, the Southern District office of the California Department of Water Resources served as Watermaster, and the Watermaster role was purely that of a monitor of the Judgment and an accountant for water production and exchange. In the West and Central Basins, the Department of Water Resources played a similar role to its original role in Raymond Basin, accounting for water production and transactions, but the water producers also established the Central and West Basin Water Replenishment District as a policy‑making body to coordinate basin replenishment and storage as well as salt‑water intrusion barrier facilities. In the San Fernando Valley, the accounting and policy‑making roles were united in an individual Watermaster chosen by the court with the approval of the water producers, who operates with the advice and consent of an Advisory Committee composed of water producer representatives. In the Main San Gabriel Basin, a multi‑member court‑appointed Watermaster composed of representatives of water producers and overlying water districts serves as the policy‑making and accounting body. The Raymond Basin water producers have since followed

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this example, replacing the California Department of Water Resources as Watermaster with their own Raymond Basin Management Board consisting of producers’ representatives and contracting out the accounting function. In the Chino Basin, the Judgment assigned the Board of Directors of an overlying water district the role of Watermaster with both policy‑making and accounting responsibilities, to be guided by an Advisory Committee of producer representatives on policy while delegating most of the accounting functions to district staff. This arrangement underwent its own changes later. Changes in the California law of water rights also affected basin management in the adjudicated southern California basins from Raymond to Chino. The Pasadena v. Alhambra decision in the Raymond Basin case established the precedent for basin adjudications based on the doctrine of “mutual prescription.” The West, Central, and Main San Gabriel Basins followed this approach. The San Fernando Valley Basin adjudication raised new issues concerning the status of the City of Los Angeles’ pueblo water right and the State of California’s policy against the acquisition of prescriptive water rights against overlying owners or public agencies, reinforcing and in a sense reinstating California’s dual system of overlying and appropriative groundwater rights. In Chino Basin, the different sources of groundwater rights of different classes of water producers were incorporated into the adjudication, along with an agreement among the public agencies with appropriative water rights to stipulate to a kind of “mutual prescription” arrangement without explicitly giving it that name. The Chino Basin case thus shows the effects and influences of prior cases, especially of the institutional innovations in the Main San Gabriel Basin adjudication and the legal ramifications of the San Fernando Valley adjudication. With reference to the latter, the experience of the Chino Basin establishes two important points. First, the Chino Basin case made clear that groundwater basins in California could still be controlled and managed through adjudication in the aftermath of the California Supreme Court’s 1975 San Fernando decision (Lipson, 1978: 17). Such adjudications are clearly more complex, but they are possible and do not have to be excessively time‑consuming and costly. Despite the California Supreme Court’s San Fernando decision landing in the midst of the Chino Basin negotiations and after formal legal proceedings had been initiated, the Chino Basin adjudication involving the water rights of 1300 parties moved from initial filing to final judgment in three years. Second, as noted earlier, the Chino Basin case makes clear the inefficiencies that arise from the strict interpretation of water rights law applied by the California Supreme Court in the San Fernando decision. By upholding the doctrine that the water rights of overlying landowners cannot be limited and quantified without their consent and cannot be separated from the land, the San Fernando decision complicated and inhibited the ability of water rights owners to exchange, lease, and sell their rights. In the Chino Basin Judgment, the groundwater rights of over 1200 overlying agricultural and non‑agricultural water producers could not be transferred separately from the land. Groundwater rights could be exchanged only among the 20 or so Appropriative Pool members. The administration of the Chino Basin

6.7  The Governance Structure Created by the Judgment

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Judgment requires a set of accounting manipulations in order to allow water production to move from agricultural to urban and suburban uses, including the sale of “stored water” rather than the exchange of pumping rights and the “reallocation of unpumped safe yield water”  – an administrative and accounting procedure that spreads the Overlying (Agricultural) Pool’s unused share of safe yield across the members of the Appropriative Pool, rather than simply allowing an appropriator to make an agricultural user an offer for part or all of his or her pumping right. The Chino Basin case demonstrates that the San Fernando decision restricted water rights exchanges and as a consequence individual owners of unquantified overlying water rights may receive nothing in exchange for reducing their pumping.

6.7  The Governance Structure Created by the Judgment Even if the Chino Basin Judgment had been merely a decree for the allocation of pumping and storage rights, that would make it a central feature of the story of groundwater management in Chino Basin. As noted above, however, there is more to it than that. The Judgment has served also as a constitutional document for the governance and management of the basin. It created a decision-making structure composed of representative bodies of groundwater users, combined with an administrative entity – the court-appointed watermaster – to carry out numerous operational, monitoring, and reporting functions to implement the judgment. Understanding this governance structure is essential to understanding how Chino Basin has been managed since. Chino Basin’s governance structure involves the three producers’ pools, their selection of representatives to a Watermaster Advisory Committee, the designation of a Chino Basin Watermaster, and the continuing jurisdiction of the Court. Chino Basin groundwater producers placed a representative structure around the Watermaster and a number of conditions on Watermaster operations, such as requiring the approval of the Watermaster Advisory Committee before the taking of substantive basin management actions. This structure leaves the producers with extensive discretion and considerable authority to govern the basin and its management. In the words of an analyst at the time of the Judgment, “In fact, there is little the Watermaster can do without producer approval” (Lipson, 1978: 17). In addition, the retention of continuing jurisdiction by the Superior Court allows for amendment as well as enforcement of the judgment as needed, so judges have been vital decision makers at times during the basin’s modern history as well.

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6.7.1  The Pool Committees The Judgment recognizes a Pool Committee of producer representatives for each of the Pools created under the physical solution in the Judgment. This formalized and institutionalized the pool committees that were created during the negotiations over the adjudication. The Pool Committees are the governing bodies for the individual producer Pools, and decide matters affecting the internal administration of their respective Pools. Each Pool Committee has a Chair and Vice-Chair, and administrative support is provided by the Chino Basin Watermaster staff. The Pool Committees, in turn, choose representatives to serve on the Watermaster Advisory Committee described below, which reviews, recommends, or requires Watermaster actions, and can also serve to decide issues affecting more than one Pool.43 What are known as “pooling plans” are included as exhibits in the Judgment – Exhibit F for the Overlying (Agricultural) Pool, Exhibit G for the Overlying (NonAgricultural) Pool, and Exhibit H for the Appropriative Pool. The pooling plans are equivalent to bylaws: they contain the rules for each committee’s structure, how meetings will be conducted, how votes will be taken, and how the costs and benefits of Pool Committee administration are to be distributed among the pool members. At times since 1978, Pool Committees have decided to amend their pooling plans, and when this occurs the revised pooling plan must be submitted to the Court and approved as a modification to the Judgment. Under the Judgment, the producers in the Overlying (Agricultural) Pool annually elect the Overlying (Agricultural) Pool Committee, originally set at 20 members. The Pool Committee itself operates on a one member, one vote basis. Pool members’ votes for Pool Committee representatives were based on one vote per 100 acre‑feet of production in the previous year.44 Despite its name, the Overlying (Agricultural) Pool includes members who possess overlying land within the basin but are not primarily engaged in agriculture – these include the State of California, the County of San Bernardino, and some individuals or families with household wells for domestic use. These members were included in what is called the Agricultural Pool because, as mentioned earlier, their pumping rights as overlying landowners were not quantified in the Judgment. At the time of the Judgment, the Agricultural Pool had by far the largest membership. That is still the case, but only because the other two pools have two-dozen members or less; the number of Agricultural Pool members dropped substantially over the next 40 years as was expected. The members of the Agricultural Pool revised the pooling plan to reduce the size of the Pool Committee from 20 members to 12, and also relaxed restrictions on members serving simultaneously on the Pool Committee and the Watermaster Advisory Committee. These changes were made in light of the declining (and aging) pool membership which was starting to make it difficult to get enough persons to serve and to be assured of a quorum at meetings. 43 44

 Chino Basin Judgment, p. 21.  Chino Basin Judgment, Exhibit F, p. 62.

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The Overlying (Nonagricultural) Pool Committee consists of the entire Overlying (Nonagricultural) Pool, which had 12 members at the time of the Judgment – currently there are 14. Voting in the Overlying (Nonagricultural) Pool is ordinarily on a one member, one vote basis, but any member can request a “volume vote” instead.45 Volume vote calculations are updated each year – half of the votes are apportioned among the members on the basis of their respective shares of the basin safe yield, and the other half are apportioned on the basis of the prior year’s groundwater production.46 All producers in the Appropriative Pool (22 at the time of the Judgment and 24 now) are represented on the Appropriative Pool Committee. Voting in the Appropriative Pool Committee is allocated by a scheme totaling 1000 votes, with 500 votes apportioned among the members by production right (i.e., share of Operating Safe Yield) and 500 votes apportioned among the members by assessable production in the prior year.47 The allocation of votes is thus updated each year. To prevail in a vote, one must have the support of a majority of the votes and at least one‑third of the members. If no member objects, the Appropriative Pool Committee may conduct business on a simpler one member, one vote basis, but the weighted voting method must be used when called for by any member.

6.7.2  The Watermaster Advisory Committee The Pool Committees each select representatives to the Watermaster Advisory Committee. The Advisory Committee is composed of no more than ten voting representatives from each pool, as designated by the respective Pool Committee (Lipson, 1978: 17). The Overlying (Agricultural) Pool has chosen to have ten representatives to the Watermaster Advisory Committee, the Overlying (Nonagricultural) Pool has chosen to have three representatives to the Watermaster Advisory Committee, and the Appropriative Pool has chosen to have ten representatives to the Watermaster Advisory Committee48 (Box 6.1).  Chino Basin Judgment, Exhibit G, p. 65.  In 2018, vote shares among Overlying (Non-Agricultural) Pool members ranged from 0 for several members to a high of 583.248 votes (City of Ontario). 47  Chino Basin Judgment, Exhibit H, p. 68. In 2018, vote shares among Appropriative Pool members ranged from a low of 0.000 to a high of 219.005 votes (City of Ontario). 48  Originally, eight of the 10 Appropriative Pool representatives on the Watermaster Advisory Committee were specified in the Judgment: the cities of Chino, Ontario, Pomona, and Upland, the Cucamonga and Monte Vista County Water Districts, and the Fontana Union and Pomona Valley Water Companies. This was modified. “The Committee has determined that ten of its members shall serve on the Advisory Committee. Eight of these representatives consist of the ‘major appropriators’ of the pool, or the eight that produce the most water. Of the other two representatives, one is elected ‘at large by the remaining members of the Appropriative Pool on the basis of one vote per member’. The other representative is elected by a volume vote, as specified in the Committee voting procedures” (Green, 1997: 27). 45 46

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Box 6.1: Groundwater Rights and Governance Roles in the 1978 Chino Basin Judgment Groundwater production rights* Overlying (Agricultural) Pool – 414,800 acre-feet in a 5-year period, i.e., average of 82,800 acre-feet per year, aggregate production by all Pool members Overlying (Non-Agricultural) Pool  – 7366 acre-feet per year, allocated among individual Pool members Appropriative Pool – 49,834 acre-feet per year, allocated among individual Pool members * These are the amounts that can be produced without incurring an additional fee (assessment) for basin replenishment. Roles in the Governance Structure Overlying (Agricultural) Pool Committee

Overlying (Non-Agricultural) Pool Committee

Appropriative Pool Committee

appoint representatives to

Watermaster Advisory Committee

recommends Watermaster appointment

Court

appoints

Watermaster

reports to

On the Watermaster Advisory Committee, total voting power is 100 votes allocated among the three pools. This is apportioned based on total assessments paid to Watermaster during the preceding year, provided that the least the Overlying (Agricultural) and Appropriative Pools can have is 20 votes each and the least the Overlying (Nonagricultural) Pool can have is five.49 This voting scheme has allowed the Appropriative Pool’s proportion of voting power on the Advisory Committee to grow, while still protecting a minimum number of votes for the other two pools. Because of the allocation of Basin Safe Yield and the replenishment assessment formulas, everyone knew at the time of the Judgment that the Appropriative Pool members would be paying the great majority of the assessments under the Chino Basin management program. The Watermaster Advisory Committee members annually elect a Chair, a Vice-­ Chair, and a Second Vice-Chair – one from each of the pools, with the three positions rotated annually among the pools. Administrative support to the Advisory Committee is provided by Chino Basin Watermaster staff. Special meetings of the

49

 Chino Basin Judgment, p. 18.

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Advisory Committee may be called at any time by the Chair or any three members of the Committee. As alluded to earlier, the role of the Watermaster Advisory Committee is much greater than its name might imply. It is really a policymaking committee, not merely advisory to the Watermaster. The Watermaster was understood to have primarily administrative and managerial functions, receiving direction from the Advisory Committee.50 If the Advisory Committee approves a motion with a majority vote, that motion becomes a recommendation to the Watermaster. If the Advisory Committee approves a motion with a vote of 80% or greater, that is regarded as a mandate to the Watermaster to take the approved action.

6.7.3  C  hino Basin Municipal Water District’s Appointment as Watermaster The Chino Basin Watermaster is appointed by the Court as part of the Court’s continuing jurisdiction, upon a recommendation from the Advisory Committee. This is an important distinction, which was not the case in some other groundwater basin adjudications. The judge does not simply select the Watermaster on his or her own initiative – the Advisory Committee recommends to the judge whom to appoint or reappoint as Watermaster, and the judge is to follow the Advisory Committee’s recommendation unless there is a compelling reason not to do so. Ordinarily an appointment or reappointment as Watermaster is for a term of five years; however, the appointment or its duration may be changed at the direction of the Court or a majority of the Watermaster Advisory Committee.51 The Chino Basin Watermaster is obliged to carry out any orders of the Court and also obliged to follow the direction of the Advisory Committee. There is no doubt that the greater obligation is to the Court – if the Advisory Committee recommended or even mandated an action to the Watermaster that conflicted with a provision of the Judgment or any other order of the Court, the Court’s order would plainly prevail. Rarely are conflicts this clear-cut, however, and there can be and have been occasions when the direction received from the Advisory Committee and the Watermaster’s understanding of its obligations under the Judgment have differed or at least appeared to do so. During the negotiations over the adjudication, Chino Basin water producers considered having a multi‑member Watermaster in similar fashion to the Watermaster created in the Main San Gabriel Basin in 1974. Instead, the Judgment appointed the five‑member Board of Directors of the Chino Basin Municipal Water District  The exact extent of discretion of the Watermaster is a matter on which not all parties have always agreed, but there is a general consensus that the Watermaster should not act contrary to the direction of the Advisory Committee. A Watermaster action that is perceived to be contrary to Advisory Committee direction is potentially challengeable in court. 51  Chino Basin Judgment, p. 12. 50

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(CBMWD), which overlies about 75% of the Chino Basin, to serve as the Chino Basin Watermaster. The CBMWD had defended the interests of Chino Basin producers in the Santa Ana River litigation, had filed the complaint to formally start the Chino Basin adjudication, provided legal and staff support for the negotiation process during the adjudication, and already had staff, offices, and fiscal capabilities that clearly would be needed to administer the Judgment. There was some expression of concern, however, about CBMWD’s selection as Watermaster, especially from those Chino Basin groundwater producers in Riverside and Los Angeles counties. As noted, CBMWD covers most of the basin but not all – the Los Angeles County portion on the western side of the basin lay within the Pomona Valley Municipal Water District (now named Three Valleys Municipal Water District) and the Riverside County portion on the eastern side of the basin lay within the Western Municipal Water District of Riverside County.52 These producers in the western and eastern portions of Chino Basin (and their respective constituents or customers) could not vote in the elections for the board of directors of the CBMWD. Under the circumstances at the time of the adjudication, however, these misgivings could not prevail. To most of the parties, it was the obvious choice. Moreover, according to one contemporaneous observer, during the negotiations over the Judgment the District “also made known that it would drop the adjudication if it were not selected” as Watermaster (Lipson, 1978: 81). As Chino Basin began life under its new constitution, the governance structure was comprised of the three Pool Committees, the Watermaster Advisory Committee, and the Chino Basin Municipal Water District board as the Court-appointed Watermaster.

References Blomquist, W. (1992). Dividing the waters: governing groundwater in Southern California. San Francisco, CA: ICS Press. California Department of Water Resources. (1970). Meeting water demands in the Chino-Riverside area. Appendix A: Water supply (Bulletin No. 104-3). Sacramento, CA: State Printing Office. Green, M. H. (1997). Analyzing conflict: A case study of groundwater government in Chino Basin. Senior Thesis, Pomona College. Lipson, A.J. (1978). Efficient water use in California: The evolution of groundwater management in Southern California. Santa Monica, CA: RAND Corporation Report R-2387/2-CSA/RF. Wildermuth, M., & Kavounas, P. (2019). Framework for Chino Basin’s future: Investigating potential impacts of storage and recovery projects. Source, 33(2), 28–32.

 Western Municipal Water District overlies the eastern portion of Chino Basin – the “western” in the district’s name refers to the fact that the district is in western Riverside County.

52

Chapter 7

Groundwater Management in Chino Basin During the First 15 Years Under the Judgment Abstract  The early period of management under the Chino Basin Judgment featured some successes but a gradual build-up of frustrations. Provisions of the judgment covering pumping limitations and basin replenishment were put in place, and the first reallocation of pumping rights from agriculture to municipal and industrial use was carried out. As the 1980s went on, concerns arose among some parties about basin planning, the management of basin storage capacity, and groundwater quality degradation, prompting some reconsideration of what the overall basin management program should address. By the end of the decade, those concerns translated into a legal challenge by some Chino Basin parties to the ways in which the Judgment was being administered. That lawsuit both precipitated and foreshadowed a turning point in the basin governance and management regime. Keywords  California · Chino Basin · groundwater · Chino Basin Municipal Water District · Chino Basin Watermaster · nitrates · groundwater recharge · imported water · groundwater quality

This chapter recounts how basin governance and management took shape from the entry of the Judgment in 1978 to the beginning of the 1990s. This was a critical period that saw some early successes but a gradual build-up of frustrations. On the positive side, provisions of the Judgment covering pumping limitations, reporting, and basin replenishment were put in place and began operating, largely as initially envisioned. The first reallocation of pumping rights from agriculture to municipal and industrial use was carried out, as well. As the decade of the 1980s went on, some concerns arose about basin planning and the management of basin storage capacity. Those concerns foreshadowed a broader conflict that emerged later. First, however, groundwater quality issues elbowed their way onto the agenda in Chino Basin, forcing some reconsideration of what the overall basin management program would have to address. In the 1980s, water suppliers and users in Chino Basin became increasingly aware and increasingly concerned over revelations of groundwater quality degradation and its potential implications. Some of the degradation was acute, like the Stringfellow Acid Pits, which became nationally infamous as a U.S. EPA Superfund

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_7

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site containing toxic and potentially carcinogenic contaminants. Some of the degradation was diffuse and chronic, like the presence of high nitrate levels in significant portions of the basin – these were to some extent the legacy of past land use practices and thus it was more difficult to precisely ascertain the causes and responsible parties. Also, as described in Chap. 5, a provision of the Santa Ana River Judgment required Chino Basin and the rest of the upper watershed to assure that water flowing to Orange County would meet certain water quality standards, so Chino Basin could not simply export its lower quality problem downstream. How to deal with water quality problems within the institutional arrangements that had been put in place became an issue of discussion, and some contention, within the basin.

7.1  Launching the Governance Structure Administration of the Judgment was underway soon after its formal entry. The first meeting of the Chino Basin Municipal Water District’s Board of Directors as the Chino Basin Watermaster was held on February 15, 1978. At that meeting, the CBMWD board as Watermaster signed a “services and facilities contract” with CBMWD as the district – in effect, signing a contract with itself, but reflecting the fact that CBMWD was serving as two distinct legal entities. The contract provided for staff support and the use of CBMWD facilities (such as office space and meeting rooms) by the Watermaster. The contract also specified procedures to be used in billing the services of the district to the Watermaster, to be allocated among the Pools and producers.1 This close identification between CBMWD and the Chino Basin Watermaster remained in effect for the first two decades of operation under the Judgment. CBMWD was reappointed by the court as Chino Basin Watermaster in 1983 and 1989.2 The offices of the Chino Basin Watermaster were the district’s offices in Rancho Cucamonga, California. Four CBMWD staff members spent at least part of their time on Watermaster services, with one devoted to Watermaster services full time. One CBMWD staff member was designated the Chief of Watermaster Services. The first Chief, Frank Brommenschenkel, served until 1980. His former assistant and successor, Donald Peters, served as Chief of Watermaster Services from 1980 to 1991. As an MWD member agency, CBMWD purchased imported

1  Chino Basin Watermaster, First Annual Report of the Chino Basin Watermaster, Fiscal Year 1977–78, p. 4. 2  Although the first reappointment of CBMWD as Watermaster was recommended with unanimous support of the Watermaster Advisory Committee, the second reappointment was endorsed by a majority (though not all) of the Watermaster Advisory Committee, reflecting some discontent among some of the water producers in the basin. When asked about the prospects for continued reappointment of CBMWD as Watermaster, the then-current Chief of Watermaster Services at the district replied, “Who else would do it?” (Peters interview, July 25, 1988.) At the time, it was a rhetorical question.

7.2  Operation of the Physical Solution

81

replenishment water for the Chino Basin on behalf of the Watermaster, with reimbursement charged by Watermaster to the parties based on provisions of the Judgment.3 The Pool Committees also began to operate in their post-Judgment incarnation relatively quickly. As noted in Chap. 6, the Overlying (Nonagricultural) Pool and Appropriative Pool members are all automatically members of their respective Pool Committees. The Overlying (Agricultural) Pool Committee was first elected from the membership of the Pool in February 1978. The Pool Committees appointed their respective members of the Watermaster Advisory Committee, which was then in position to begin its functions by the time of the first Watermaster meeting.4 The court’s continuing jurisdiction passed quickly from Judge Howard Weiner, who signed and entered the Judgment, to Judge Don A. Turner. Judge Turner became the first Judge to preside over operations under the Chino Basin Judgment. He continued to serve as the Presiding Judge for Chino Basin from 1978 to 1990. The completion and operation of the Chino Basin adjudication, including the establishment of the Pool Committees and the Watermaster Advisory Committee to represent Chino Basin water producers, largely eliminated the need for the continuing presence of the Chino Basin Water Association. The association had been very important in the 1960s and early 1970s in moving the basin toward a management plan and the adjudication. On August 4, 1982, the Chino Basin Water Association met and unanimously voted to dissolve.5

7.2  Operation of the Physical Solution The Chino Basin Judgment was effective in halting the increase in total water production from the Chino Basin, and in providing the needed set of incentives and constraints to induce groundwater producers to rely to a greater extent on imported supplemental water. From the late 1970s through the late 1980s, total groundwater production declined from 170,000–180,000 acre-feet per year to 125,000–150,000 acre-feet per year while imported water use rose from 50,000–60,000 acre-feet to 115,000–135,000 acre-feet per year. Groundwater production exceeded the target of 145,000 acre-feet per year6 only three times in the first twelve years of operation under the Judgment. Only in the first year under the Judgment did the Overlying (Agricultural) Pool and the Overlying (Nonagricultural) Pool exceeded their 81,800 and 7366 acre-foot respective annual shares.  Peters interview, July 25, 1988. Current operational arrangements are described in Chap. 14.  Chino Basin Watermaster, First Annual Report of the Chino Basin Watermaster, Fiscal Year 1977–78, pp. 7–11. 5  Chino Basin Watermaster, Seventh Annual Report of the Chino Basin Watermaster, Fiscal Year 1983–84, p. K-7. 6  As described in Chap. 6, the Judgment set the Basin Safe Yield at 140,000 acre-feet per year but provided for a 40-year allowance of additional pumping at the rate of 5000 acre-feet per year. 3 4

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7  Groundwater Management in Chino Basin During the First 15 Years…

Deliveries of replenishment water to the basin varied in accord with the amount of over-pumping from year to year by the Appropriative Pool. A few appropriators also participated in in-lieu and MWD interruptible replenishment programs that provided financial incentives to take MWD water and pump less groundwater. The total amount of replenishment to Chino Basin by these methods increased during the 1980s. In the mid-1980s, the anticipated conversion of water production from the Agricultural Pool to the Appropriative Pool got underway. Beginning in 1983–84, unpumped safe yield from the Overlying (Agricultural) Pool was transferred to the Appropriative Pool. These transfers allowed the Appropriative Pool to increase its groundwater production from the basin by about 30,000 acre-feet per year without having to pay for 30,000 acre-feet of replacement water purchases each year, because groundwater production by the Agricultural Pool had declined by at least that much. The three Pools’ relative shares of groundwater production shifted substantially, as anticipated. In 1977–78, the respective percentages of total production from the Basin by the Agricultural, Non-Agricultural, and Appropriative Pools had been 54.3, 6.5, and 39.2%. In 1988–89, the respective percentages of production by these three Pools were 32.5, 2.5, and 65.0%. Small amounts of these unpumped safe yield transfers qualified as permanent transfers under the land use conversion process established in the Judgment. Most, however, were transfers of unpumped Basin Safe Yield from the Agricultural Pool to the Appropriative Pool. Of course, all these elements of the operation of the physical solution discussed so far – the monitoring of production by each Pool, the assessments upon producers for administration of the Judgment and the purchase of replacement water, and the transfer of unpumped safe yield water from the Agricultural Pool to the Appropriative Pool  – depend upon accurate measurements of water production. With approximately 1300 parties in the Chino Basin, this monitoring task proved challenging. In the Chino Basin, verifying the accuracy of water production meters on the hundreds of wells in the basin was difficult. The Chino Basin Watermaster was supposed to verify the accuracy of every production meter in the basin every two years. However, more significant than the issue of testing production meters was getting them installed in the first place. Originally, all wells were supposed to be metered by June 30, 1979, the end of the second year of operation under the Judgment.7 However, the process of metering took far longer. Verification of meter accuracy and repair of inaccurate meters, especially for the hundreds of agricultural production wells, became an issue within the basin. In 1988 the Appropriative Pool offered to strike a deal with the Agricultural Pool. The Appropriative Pool offered to pay all groundwater production assessments of the Agricultural Pool in exchange for the annual transfer of all unpumped safe yield water of the Agricultural Pool. Under the original provisions of the Judgment, such transfers were to be made on a five-year timetable. In order to verify the amount of

7  Chino Basin Watermaster, First Annual Report of the Chino Basin Watermaster, Fiscal Year 1977–78, p. 13.

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83

unpumped Agricultural Pool water, the Appropriative Pool established a compliance procedure for the meter testing and repair required by Watermaster Rules and Regulations. The State of California Attorney General’s office offered to assist in informal enforcement proceedings against 142 non-complying Agricultural Pool producers, prior to initiation of legal proceedings by the Watermaster’s attorney. In May 1989, the Watermaster Advisory Committee accepted the offer of assistance.8 The combination of increased production by the Appropriative Pool, the structuring of the Basin Safe Yield in the Judgment, and the methods used for assessing parties for bringing replacement water into the basin, quickly produced the result anticipated during the adjudication process: the Appropriative Pool paying the majority of the costs of basin management and replenishment. What may not have been anticipated was just how overwhelming that majority has turned out to be. By the end of the 1980s, the Appropriative Pool was paying almost all of the costs of the management and replenishment programs in Chino Basin. The Watermaster focused much of its activity and financial resources on basin recharge. Actual replenishment operations at spreading grounds in the basin were performed by the San Bernardino County Flood Control District under contracts with the Chino Basin Watermaster established in April 1978.9 At that time, the spreading grounds in Chino Basin most often used for the spreading of imported replenishment water purchased by the Watermaster were the San Sevaine and Montclair Basins, with Day Creek and Etiwanda Basins used to a lesser extent. The recharge capacity available to the Watermaster in those basins at the time was about 40,000–45,000 acre-feet per year.10 In the mid-1980s, the Chino Basin Watermaster attempted to improve its recharge capacity. In June 1985, the Chino Basin Watermaster was approved as co-applicant (along with San Bernardino County Flood Control) to appropriate flood waters from Day Canyon. The county wanted to make improvements to flood control facilities at Day Canyon and needed the additional use to qualify for a government construction loan. The Chino Basin Watermaster and San Bernardino County Flood Control District received “sole rights to capture this runoff for basin recharge which will benefit all pumpers in the Chino Groundwater Basin.”11

 Chino Basin Watermaster, Twelfth Annual Report of the Chino Basin Watermaster, Fiscal Year 1988–89. 9  Chino Basin Watermaster, First Annual Report of the Chino Basin Watermaster, Fiscal Year 1977–78, p. 6. In addition, the Chino Basin Watermaster, the Municipal Water District of Orange County, and Orange County Water District negotiated and finalized a three-party agreement in 1978 for use of the OC-59 service connection to the Rialto Reach of the State Water Project, which allowed State Project water to be imported and spread in the Montclair Basins along the San Antonio Creek channel in the western portion of the basin. In 1979, the Chino Basin Municipal Water District succeeded to Chino Basin Watermaster’s part of this agreement, for insurance purposes. 10  Peters interview, July 25, 1988. 11  Chino Basin Watermaster, Eighth Annual Report of the Chino Basin Watermaster, Fiscal Year 1985–86, p. 8. 8

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7  Groundwater Management in Chino Basin During the First 15 Years…

Late in 1987, the Chino Basin Watermaster and the San Bernardino County Flood Control District filed an application to appropriate waters from San Sevaine Creek for basin recharge. This application was protested by the City of Fontana, which claimed the right to capture and use storm flows of San Sevaine Creek as a result of improvements to the channel made by the city. This dispute over who owned the recharged water resurfaced years later, as well.12 As mentioned above, another replenishment practice used in the Chino Basin is in-lieu replenishment, which does not require spreading grounds and applications to appropriate flood waters. In-lieu replenishment involves the participation of water users in the basin who have the facilities and equipment to be able to use either pump groundwater or take imported supplemental water supplies. By offering such producers incentives to take imported supplies for their direct use and to leave a portion of their groundwater right unpumped, the Watermaster could accomplish basin recharge indirectly, since non-removal of the groundwater has the same effect as its removal and replacement. The incentives offered by the Watermaster to the producers were a financial reimbursement to offset the difference to them between taking imported supplies and pumping groundwater. The Chino Basin Judgment designated an original area within the basin to be eligible for in-lieu replenishment. That area, designated In-Lieu Area No. 1, exhibited nitrate levels in the groundwater supply in excess of 45 mg/L.13 In February 1978, at the first Watermaster meeting after the entry of the Judgment, the Watermaster designated the entire basin In-Lieu Area No. 2, thereby qualifying appropriators anywhere in the basin to participate in in-lieu replenishment programs with the Watermaster plus in-lieu programs offered by MWD.14 The MWD in-lieu program was later named the “interruptible” program, wherein MWD made additional water supplies available at reduced rates to producers who were willing to take those supplies when they were available and then draw upon local sources such as groundwater when the “interruptible” water was unavailable. In 1985, the cities of Chino, Ontario, and Upland, Monte Vista Water District, and San Bernardino County Water Works District No. 8 formed the Water Facilities Authority as a joint-powers agency. Through it, they jointly financed ($34 million) a water treatment facility which allowed them to take MWD imported water and serve it directly to their residents. This allowed them at times to pump less than their full allocations of Operating Safe Yield, thereby storing water in the basin. Overall, the first 15 years of operation of the physical solution saw control of production, increased reliance on imported water, water exchanges, replenishment programs, and the conversion of land and water use away from agriculture and toward urban and suburban uses. Over the period, the number of production wells in Chino Basin fell. At one time, there were 3000–3500 production wells in Chino 12  Chino Basin Watermaster, Twelfth Annual Report of the Chino Basin Watermaster, Fiscal Year 1988–89, p. 20. 13  Chino Basin Judgment, Exhibit H, p. 76. 14  Chino Basin Watermaster, First Annual Report of the Chino Basin Watermaster, Fiscal Year 1977–78, pp. 4–5.

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85

Basin; by 1988, there were between 900 and 1000.15 Prior to the adjudication, Chino Basin had experienced annual overdrafts of about 30% of safe yield. In the first 15  years after the Judgment, pumping rarely exceeded safe yield. The pumping reductions and replenishment operations were associated with a rise in groundwater levels. In the southern half of the basin, water levels rose 10–15 feet closer to the land surface.

7.3  Basin Storage and Planning In the first 15 years under the Judgment, the Chino Basin Watermaster implemented three programs to make use of the storage capacity of the Chino Basin and considered other ways of doing so. The three programs that were implemented were the Local Storage program, Cyclic Storage program, and Water Exchange Agreement program. Under the Local Storage program, water producers in the Chino Basin could enter into agreements with the Watermaster to store water in the basin, either for later use by the party itself or for transfer to another party. That program may be used by parties that have rights or access to more water in a particular year than they will require in that year.16 In November 1978, the Chino Basin Watermaster approved a Standard Form Local Storage Agreement and a Cyclic Storage Agreement and submitted them to the Court for review and approval. Uniform Groundwater Storage Rules and Regulations were adopted by Watermaster in May 1979.17 The first Local Storage Agreement was executed in the 1978–79 water year with the Conrock Company to preserve the unused portion of their pumping right, 1.589 acre-feet.18 By the end of the 1988–89 water year, 40 Local Storage Agreements had been executed, totaling 277,928.44 acre-feet of potentially stored water, with 126,264.272 acre-feet of water actually in storage pursuant to those agreements.19 The Watermaster also approved forms for the transfer between parties of water in Local Storage. The first such transfer of stored water occurred during fiscal year 1981–82 when Fontana Union Water Company sold 3000 acre-feet of stored water to the City of Chino.20 By the end of the decade there were ten sales of Local Storage water in a year, totaling about 50,000 acre-feet. In December 1978, the Chino Basin Watermaster entered into a Cyclic Storage Agreement with MWD. This 5-year agreement, which was renewed a few times,  Peters interview, July 25, 1988.  Unused appropriative rights may also be leased between appropriators. 17  Chino Basin Watermaster, Second Annual Report of the Chino Basin Watermaster, Fiscal Year 1978–79, pp. 7–8. 18  Ibid., p. 13. 19  Chino Basin Watermaster, Twelfth Annual Report of the Chino Basin Watermaster, Fiscal Year 1988–89, letter of transmittal. 20  Chino Basin Watermaster, Fifth Annual Report of the Chino Basin Watermaster, 1981–82, p. 12. 15 16

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allowed MWD to store up to 100,000 acre-feet of surplus water in Chino Basin. In subsequent years when surplus imported water for basin replenishment was unavailable, MWD could transfer the stored water to Watermaster. From the Watermaster’s perspective, the purpose was to guard against future lack of replenishment water availability, and for MWD the program guaranteed the sale of water in years when it had surplus water from the State Water Project. The Watermaster did not have to pay for the surplus water when it was placed in the basin, although the Watermaster paid for the water spreading costs. Later, the water in Cyclic Storage could be called upon by the Watermaster for use as replenishment water, and the Watermaster would pay for it then. By the beginning of fiscal year 1988–89, approximately 70,000 acre-­ feet of water had been placed in Cyclic Storage, and that year the Watermaster called upon some of that water to make up for reduced availability of replenishment water from MWD.21 In May 1986, the Watermaster approved forms for Water Exchange Agreements, another type of in-lieu water storage and replenishment program. These forms were approved by the court in December 1986. The Water Exchange Agreement program allowed Chino Basin appropriators to enter into their own agreements with MWD, with the Chino Basin Watermaster serving as trustee, to exchange part of their pumpers’ share of the basin Operating Safe Yield for supplemental imported water from MWD with a financial incentive from MWD.22 In the 1987–88 and 1988–89 water years, the Cucamonga County Water District and the City of Ontario both participated in the Water Exchange Agreement program, exchanging a combined total each year of about 6000–7000 acre-feet.23 Additional investigations were made of possibilities for the use of basin storage and the operation of the basin as part of a conjunctive management program (referred to currently as “storage and recovery”). Initially, the Watermaster and the Watermaster Advisory Committee were enthusiastic about the prospects of making maximum use of the basin’s value as an underground storage reservoir, as this language from the first Chino Basin Watermaster annual report, describing Watermaster Task Order 78–1, attests: Conjunctive Use Study for the purpose of assuring that all aspects of the Chino Groundwater Basin are explored relating to the desirability and feasibility of conjunctively using this basin for storing up to one million acre feet of State Project water. Having additional water in storage in the Basin should increase groundwater levels and decrease the amount of

 Interview with Donald Peters, July 25, 1988. In 2002, MWD, its member agency Inland Empire Utilities Agency (the former Chino Basin Municipal Water District) and Chino Basin Watermaster entered into a new arrangement called the Dry Year Yield Program based on a design similar to the earlier Cyclic Storage Program. 22  Chino Basin Watermaster, Ninth Annual Report of the Chino Basin Watermaster, Fiscal Year 1985–86, p. 8. 23  Chino Basin Watermaster Eleventh Annual Report of the Chino Basin Watermaster, Fiscal Year 1987–88, letter of transmittal. Chino Basin Watermaster, Twelfth Annual Report of the Chino Basin Watermaster, Fiscal Year 1988–89, letter of transmittal. 21

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energy required to pump water to the surface. This could monetarily benefit all producers in the basin.24

Over time, however, some of this initial enthusiasm waned as the complications involved in raising water levels in the Basin became clearer. The original Conjunctive Use Study involved both the MWD and the California Department of Water Resources and extended over the first several years of operation under the Judgment. After three of the four planned phases of the study had been completed, the Department of Water Resources dropped out. An environmental assessment was drafted, and hearings were held which identified the need for additional measures to mitigate possible negative effects on water quality resulting from a rising water table.25 Other studies that were begun and possibilities explored during this period concerned: (1) the identification of key monitoring wells to monitor basin conditions in order to improve basin management decision making,26 and (2) the filing of the “Notice of Intent” required under the Judgment prior to redetermination of the safe yield of the Basin. The “Notice of Intent” has to be issued for five consecutive years prior to a redetermination, but no sooner than five years after the effective date of the Judgment. The Chino Basin Watermaster began filing a “Notice of Intent” on June 30, 1982, five years after the effective date of the Judgment, although no safe yield redetermination process was undertaken until 30 years later. The first 15  years of operation under the Judgment thus saw a redress of the supply-demand imbalance that had threatened the long-term viability of the basin. Over that period, basin policy-making also came to involve more considerations than just adding water to the basin to make up for past or current deficits.

7.4  The Emerging Significance of Water Quality In the late 1980s some members of the Appropriative Pool began to press for additional studies to review basin conditions and basin management. The Appropriative Pool’s initial approach was to persuade the Watermaster Advisory Committee to form an Ad Hoc Committee to address the need for a water quality study, a water reclamation study, an Optimum Basin Management Plan, a review of socio-­ economic conditions within the basin, and a facilities equity assessment, all of which are provided for in the Chino Basin Judgment. This Ad Hoc Committee of the Watermaster Advisory Committee first met in July 1988. After directing Watermaster to award a contract to Montgomery Engineers for a groundwater monitoring

24  Chino Basin Watermaster, First Annual Report of the Chino Basin Watermaster for the Fiscal Year 1977–78, pp. 14–15. 25  Chino Basin Watermaster, Twelfth Annual Report of the Chino Basin Watermaster for the Fiscal Year 1988–89, p. 16; also Skrove, 1989: 8. 26  Chino Basin Watermaster, Third Annual Report of the Chino Basin Watermaster, 1979–80, p. 17.

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program, the Ad Hoc Committee referred the issue of a socio-economic review (basically a study of the ongoing and projected land-use and population changes in the basin) back to the Appropriative Pool.27 The Appropriative Pool established an Appropriative Pool Ad Hoc Committee in March 1989 to review the socio-­economic conditions of the basin.28 At its May 1989 meeting, the Appropriative Pool Committee considered the issue of an Optimum Basin Management Plan for Chino Basin meeting. At that meeting the Pool Committee recommended the formation of a Chino Basin Management Study Task Force, to include not only the Watermaster Advisory Committee, but also CBMWD, The Metropolitan Water District of Southern California, Western Municipal Water District of Riverside County, and the Santa Ana Watershed Project Authority.29 These recommendations and concerns from the Appropriative Pool about Chino Basin planning and management reflected a growing dissatisfaction on the part of some members of the Appropriative Pool with the direction of the basin management program since the Judgment. That program had been oriented almost solely toward raising water levels and increasing water storage in the basin. Considerable activity occurred on those fronts, as described above, and results were achieved. On the other hand, some groundwater producers – especially appropriators in the lower portion of the basin – were concerned that equivalent attention was not being paid to issues of water quality. As mentioned above in connection with the Conjunctive Use Study begun in 1978, the issue of rising water levels was linked to issues of water quality.

7.4.1  The Stringfellow Acid Pits With regard to water quality, Chino Basin faced a number of problems that had not been addressed squarely in the Judgment or the first ten years of its operation. The water quality problem in the Chino Basin that had received the most public attention was not the one that was most pervasive. It was dramatic enough, however, to garner national media coverage and federal government action. That was the discovery of a plume of contaminated groundwater moving into the Chino Basin and caused by the Stringfellow Acid Pits. The Stringfellow Acid Pits became one of the first EPA Superfund sites. The site gained notoriety during the early 1980s when leadership of the U.S. Environmental Agency came under scrutiny. The Stringfellow Acid Pits were a licensed disposal site for industrial by-­products generated in Los Angeles, Orange, Riverside, San Bernardino, and San Diego

27  Chino Basin Watermaster, Twelfth Annual Report of the Chino Basin Watermaster, Fiscal Year 1988–89, pp. 20–21. 28  Ibid., pp. 12–13. 29  Ibid., pp. 20–21.

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Counties. The Stringfellow site leached contaminants into the underground water supply, including a high concentration of toxics and acids, among which were volatile organics, and beta and gamma constituents. Over many years following the discovery of the contamination problem, a clean-up effort was assembled and implemented, funded primarily by the national government. The agencies principally involved in the clean-up were the Region IX office of the EPA, the California Department of Health Services and Department of Toxic Substances Control, and the Santa Ana Watershed Project Authority (SAWPA).30 As the problems at the Stringfellow Acid Pits emerged, SAWPA began planning a containment, removal, and treatment approach to the contamination problem. SAWPA proposed a set of contractual arrangements with the California Department of Health Services, Region IX of the EPA, and the Orange County Sanitation District to intercept the movement of the contaminated groundwater plume by (1) extracting the contaminated water, (2) giving it initial treatment to remove heavy metals and organic materials at an on-site treatment plant to be constructed and operated by SAWPA, then (3) transporting the treated effluent via the Santa Ana Regional Interceptor (SARI) pipeline to the treatment plants of the Orange County Sanitation Districts for further treatment and disposal (Trager, 1988: 37–38). This proposal involved moving the once-treated Stringfellow water across the Chino Basin and across most of the heavily populated portion of Orange County, and it encountered a host of political and NIMBY (“not in my back yard”) opposition. At one point in late 1984, the Orange County Board of Supervisors and the cities of Fountain Valley and Huntington Beach threatened litigation. After a process of public education to convey the message that the toxic materials would be removed at the treatment site upstream, the opposition lessened and the contracts entered into between SAWPA and the EPA and SAWPA and the California Department of Health Services in 1984 were implemented (Trager, 1988: 39). Within the Chino Basin, one more obstacle had to be removed. Neither the State of California nor SAWPA had the right to export groundwater from the basin, yet the plan for removal, treatment, and transport of the water from the Stringfellow site would involve doing exactly that. The State of California had pumping rights in the Overlying (Agricultural) Pool, but not export rights. The Watermaster Advisory Committee discussed the issue and directed the Chino Basin Watermaster to petition the Court for an exception to allow the export of water by the State for purposes of the contamination remediation program. The motion was submitted and granted.31 Removal of contaminated wastewater began during the 1985–86 water year,32 and has continued each year since. Approximately 2500 acre-feet of contaminated groundwater has been exported from Chino Basin under this remediation program.

 Peters interview, July 25, 1988. Craig, 2020 provides a full account and analysis of the Stringfellow Acid Pits case. 31  Chino Basin Watermaster, Eighth Annual Report of the Chino Basin Watermaster for the Fiscal Year 1984–1985, pp. 8–9. 32  Chino Basin Watermaster, 1987, op. cit., p. 10. 30

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Despite being one of the most notorious water contamination sites in the United States, the Stringfellow Acid Pits did not result in significant harm to Chino Basin.

7.4.2  The Nitrate Problem The widespread water quality problem in the Chino Basin is nitrate concentrations. Excessive concentrations of nitrates are a threat to human health, especially to newborns, whose liquid consumption is several times greater in proportion to their body weight than that of older children and adults. Among the most dangerous effects of nitrate contamination is infant methemoglobinemia, which robs an infant’s blood of its oxygen-carrying capability, leading eventually to death by suffocation. Nitrates are a fairly common groundwater contaminant, especially in areas where land use has been primarily agricultural and where waste disposal has not been relatively sophisticated. In a groundwater basin such as the Chino Basin, where much of the overlying land use during the twentieth century was citrus groves, vineyards, and dairy farms, high nitrate concentrations are unsurprising (though no less serious). Nitrate concentrations are not distributed evenly throughout the basin. Greater concentrations tend to occur in areas of past or present intensive agricultural activity and near wastewater discharges.33 In Chino Basin, this pattern means that nitrate concentrations have been greatest in the northwest portion of the Basin (where intensive residential and commercial development first occurred) and the lower-­ lying southern portion of the basin floor where agricultural activity has been most prevalent, where most of the current agricultural and ranching activity in the basin continued through the end of the twentieth century, and toward which groundwater in the basin flows. These spatial patterns of nitrate concentration are not new. They were observed by the California Department of Water Resources 50 years ago: Water quality is lower in the southern part of the Chino Plain; northwest and north of Corona... and the area east of Pomona and west of Ontario than in the other parts of the basin. In most of these areas, ground water from shallow wells is generally of poorer quality than water from deep wells. Most of these well waters are affected by local discharges of domestic and industrial waste waters, or by agricultural waste water returns. In some of these areas, such as... Corona, and the southern portion of the Chino Basin, the ground water is shallow, and only shallow wells exist.... Nitrate concentrations are highest in ground water sampled from wells in the... Corona, and lower Chino basins, north of Claremont, Pomona, Ontario, and east and southeast of Chino.34

33 34

 California Department of Water Resources, 1970, p. 55.  Ibid., p. 59.

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7.5  C  onflict Emerges Over Groundwater Quality and Storage There is a relationship between the distribution of nitrate concentrations in the Chino Basin and the management program in the Chino Basin. The relationship is hinted at by the difference noted above in water quality of shallower versus deeper wells. This relationship between nitrate concentrations and the Basin management program became the source of a legal challenge by some Chino Basin water producers to the management practices of the Chino Basin Watermaster. Nitrates from fertilizers, manure, and wastewater do not pass directly from the land surface into the underground water supply. They first pass through the vadose or unsaturated zone, composed of the soils extending from the land surface down to the groundwater table. The water table then marks the beginning of the saturated zone in a groundwater basin, where water is stored and from which it is extracted. The implications of this for Chino Basin management are relatively straightforward. The areas within the basin with the highest nitrate concentrations in their groundwater also have the highest nitrate concentrations in their soils. In those areas, when the water table is raised and the saturated zone comes nearer to the land surface, the underground water supply (which may already exhibit above-average nitrate concentrations) mingles with the more contaminated soils and absorbs even more nitrates. Thus, the nitrate concentrations in these areas grow still greater. In its first 15 years, the basin management program was successful at increasing the total quantity of water in Chino Basin and raising groundwater levels. However, the benefits and costs of that success were not evenly distributed. In some areas, groundwater producers benefited without question from the shorter pumping lifts associated with a rising water table. In other areas, a rising water table was accompanied by aggravated water quality problems. In particular, the water producers at the southern end of the basin felt those negative consequences. The water table in this portion of the basin was already closer to the land surface and, as mentioned earlier, water levels in the lower portion of the basin rose by as much as 10–15 feet after the Judgment. Groundwater levels rose closer to the land surface. As a result, the water users in the southern end of the Chino Basin experienced increases in the nitrate concentrations in their water supply as well as the overall concentration of total dissolved solids (TDS).35 Beyond a certain point, those groundwater producers did not want groundwater levels to keep rising, and they began to voice opposition to the management practices of the Chino Basin Watermaster.

 Peters interview, July 25, 1988; Trager interview, January 30, 1989. It should be noted that there are additional concerns with having the water table to near the land surface, including the creation of swampy conditions, seepage into building basements and other excavations, and the increased possibility of soil liquifaction in the event of an earthquake (obviously a matter of particular concern to southern Californians – e.g., a March 1, 1990 5.5 southern California earthquake was centered just north of Upland along the fault zone that forms the northern boundary of Chino Basin).

35

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7  Groundwater Management in Chino Basin During the First 15 Years…

This opposition to the storage of additional water in the basin was coupled with the concerns of some members of the Appropriative Pool about the delayed development by the Watermaster of an optimum basin management plan, including water quality and socio-economic studies, as provided for by the Chino Basin Judgment. As noted, the Appropriative Pool Committee members began trying to press the pursuit of these studies and the development of this Plan. Their contention was that the Chino Basin Watermaster had ample authority to undertake these studies, and even had an obligation under the Judgment to develop an optimum basin management plan, but this authority was not being used and this obligation not fulfilled.36 On November 9, 1988, the cities of Norco and Chino plus San Bernardino County Water Works District No. 8, all members of the Appropriative Pool and located in the southern (lower) portion of the basin, filed a “Notice of Motion and Motion for Review of Watermaster Actions and Decisions” before Judge Don A. Turner in the Superior Court for San Bernardino County. They used the normally uneventful occasion of the Watermaster’s presentation of its annual report to the Court to object to the report and several aspects of the Watermaster’s conduct, and to request specific remedies. The motion charged: Watermaster has failed and continued to fail to abide by its responsibilities and duties under the Judgment by failing to undertake and implement an Optimum Basin Management Program for Chino Basin, by failing to conduct the socioeconomic Study and Survey mandated by the Judgment, by failing to provide proper, responsible, equitable and fair water management policy, and by failing to comment on the proposal by the Metropolitan Water District (MWD) for Groundwater Storage at Chino Basin.

Hearings were held on February 8, 1989 and March 1, 1989 in what came to be called the “moving parties lawsuit” – the moving parties being Chino, Norco, and Water Works District No. 8.37 They were represented by attorney Susan Trager who had worked earlier with Don Stark, the attorney who led the Chino Basin adjudication in the 1970s. Trager was intensely critical of the performance of Watermaster responsibilities during the first ten years under the Judgment – rather, from her and her clients’ perspective, the lack of performance in several areas. Trager portrayed the challenges facing Chino Basin and the rest of the Santa Ana River watershed in these terms: [M]any of the problems associated with the quantification of the rights to groundwater supplies in the Santa Ana River appear to be resolved. The questions still to be explored and resolved involve: (1) The extent and limitations of the rights to develop and use underground storage capacity; (2) the suitability and effectiveness of the various water management organizational structures; and (3) the problems associated with waste, salt balance, and water quality. These are the ‘second generation’ of groundwater issues (Trager, 1988: 36).

 Trager interview, January 30, 1989.  County Water Works District No. 8 provided water and wastewater services to an area at the southwest end of Chino Basin that incorporated in 1991 as the City of Chino Hills. Upon the incorporation of Chino Hills, the county water works district was disbanded and water, wastewater, and other public services were provided by the new city.

36 37

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The role of the watermaster in the Chino Basin adjudication is yet to be tested in the more difficult water quality questions that are beginning to become evident in that basin. The watermaster is being called upon to administer the physical solution by providing the adjudicated amounts of water of suitable quality. The shift in management emphasis is towards resolving quality issues, as pumpers receiving increasingly degraded water realize that quantity rights mean little when the water is of inadequate quality (Trager, 1988: 59-60).

The moving parties’ lawsuit represented a serious challenge to the prevailing approach to managing the basin and the first overt confrontation among the parties to the Judgment. On one side, the CBMWD board as Watermaster and most of the parties had appeared to be content during the first ten years with a basin management program that largely consisted of collecting replenishment assessments and purchasing replenishment water from MWD.38 Also, as a MWD member agency, CBMWD was cooperating with MWD’s plans to store water in Chino Basin. Such agreements could be financially beneficial to MWD, CBMWD, and several of the parties. MWD gained underground storage capacity at a fraction of the cost of building additional surface water storage. MWD was willing to pay for this benefit by offering the stored water to CBMWD at reduced rates and/or providing incentives to parties in the basin to take MWD water when it was plentiful and rely on the stored water when MWD had less water available to sell and store. This conjunctive use approach to water resource management generally makes a great deal of sense and has long been advocated in the professional and research literatures on groundwater and surface water management (Blomquist, Schlager, & Heikkila, 2004). On the other side, from the moving parties’ standpoint the accumulation of stored water in the basin and the willingness of CBMWD as Watermaster and other Chino Basin parties to keep raising groundwater levels, and to accept an ever-larger MWD presence in the basin, were troubling. First, the enormous disparity of resources (not only money and water but personnel, expertise, and physical infrastructure) between MWD and the Chino Basin Watermaster made the moving parties anxious that local control of the basin would be compromised.39 They perceived MWD as wanting to treat Chino Basin largely as a storage-rental facility for the rest of the Southern California region, and were concerned about whether MWD member agency CBMWD serving as Watermaster and other parties interested in MWD’s financial incentives would be willing to resist that prospect. Second, and more distinctly concerning to the moving parties who were concentrated at the southern end of the basin, were the groundwater quality implications of the existing approach to managing the basin. Increased replenishment and increased groundwater in storage were not only raising groundwater levels; they were accelerating the north-to-south movement of groundwater within the basin and pushing

 Peters interview, July 25, 1988.  Ms. Trager stated, “What is happening is that the Watermaster seems to be holding in abeyance all of the things that he ought to be doing under the Judgment because he thinks Metropolitan coming in is going to solve those problems. Develop a program and then what we will see inevitably is Metropolitan by default operating the basin. Perhaps to the detriment of some of the parties.” Transcript, February 2, 1989 hearing, at page 27.

38 39

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the area of degraded groundwater quality underlying the agricultural lands toward the wells of Chino, Norco, and Water Works District No. 8. Nitrate levels in the groundwater at the southern end of the basin were already high, and the course that the Watermaster appeared to be pursuing – adding as much MWD water to the basin as facilities and financing would allow – were almost certain to make the bad situation worse for them. Third, the moving parties raised before Judge Turner what they argued were deficiencies in the Watermaster’s performance of required tasks under the Judgment. The Judgment required metering of production wells throughout the basin, but ten years later a large percentage of wells had not yet been metered. (The percentage itself was a matter of debate because records of which wells were metered and which ones were not were not necessarily accurate or reported regularly, but both sides acknowledged that the percentage remained substantial.) The Judgment required that a socioeconomic study of the basin – its economic conditions, population changes, and trends – be conducted within ten years, but no study had been started. The Judgment directed Watermaster to development an “optimum basin management program” too. There was no consensus on exactly what that meant or what such a program would include, but it was fairly clear from the previous Watermaster annual reports and meeting minutes, and declarations filed with the Court in connection with the lawsuit, that no such program was in place or even under way. At the two hearings, Trager contended on behalf of the moving parties that the socioeconomic study and the optimum basin management plan were not merely administrative niceties that the Watermaster should have checked off from the “to do” list in the Judgment. To the moving parties, these kinds of studies of the basin were the keys to integrating groundwater quality and other concerns into the overall basin management regime. One of those concerns was equitable benefit to the parties – raising water levels and increased groundwater in storage were clearly beneficial if you were located in the upper elevations of the northern portion, but obtaining and maintaining those benefits threatened to cause significant groundwater degradation at the southern end. Furthermore, although the northern portion of the basin was where most of the population and commercial activity were concentrated, the southern end was already developing fast and was where the greatest extent of future development would occur as the agricultural land urbanized. Whatever “optimum” basin management might prove to mean in practice, the moving parties asserted that this “optimum” had to be good for everyone. Storage and replenishment, they contended, could be highly beneficial elements of that solution but a basin-wide review was needed in order to determine how (including where and when) those activities should occur and what effects throughout the basin they were having or could be expected to have in the future. The moving parties’ argument requested that Judge Turner order the Watermaster to conduct studies. Transcripts reveal that the February eighth and March first hearings were highly energized. The relatively placid consensus of basin administration during the first ten years under the Judgment was being challenged sharply. The attorney for CBMWD as Watermaster, Guido Smith, and for the City of Ontario, Robert

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Dougherty, countered with comparable vigor. No one had objected to the way things were going, they argued. The Watermaster Advisory Committee  – on which the moving parties themselves had representation  – had approved the replenishment and storage activities and the relationship with MWD unanimously. True, not all wells were metered yet, but these things take time and there was no need to force confrontations with reluctant well owners. Certain studies had not been done yet, but they were going to be costly and it was not clear what benefit they would have. MWD was paying for an environmental impact study for its Chino Basin storage plans, so the parties and Watermaster had deferred spending a lot of time and money on their own studies. On behalf of the moving parties, Trager pushed back. Basically nothing has been done, although things can be done to improve the water quality to offset other management practices in the basin, which include replenishment that goes on…. What the parties are here for is to bring to the Court’s attention the fact that over the years, certain studies, certain data gathering, has not been undertaken by the Watermaster. And these studies have been mandated by the Judgment and simply haven’t happened. The moving parties have asked this Court’s guidance to urge the Watermaster to get on with what it’s supposed to be doing.40

At the conclusion of the first hearing (February 8th), Judge Turner appeared to be receptive to at least some of the moving parties’ arguments, and ordered the parties to meet and confer to see whether they could reach some resolution. He counseled: What’s going to happen right now is the Watermaster’s going to be extremely defensive and is going to be automatically resisting like crazy anything that’s proposed, good or bad. I think if we took some time to go over this, it might very well boil down to the fact that there’s really just two or three things that have to be done to satisfy the moving parties and that maybe those are legitimate things. I don’t know if this is true, but maybe they are. And that if it could be agreed that certain things would be done and we could put the matter over for six months to be sure they were done, that would bring some comfort to the moving parties and perhaps in the long range create a much better administration of the district. I don’t know, but that would be a possibility.41

Advising the parties about how to approach their meeting to confer about the possibility of settlement, Judge Turner added: View the whole thing from a healing point of view. See if there is some way that you can work things out to satisfy the needs of everybody involved…. I’m not at all interested in your papers in having you tell me what a jerk the other person is. That’s no help at all.42

The parties returned to Judge Turner’s courtroom on March 1, 1989. The meetand-­confer negotiations had not produced much progress. Ms. Trager picked up  Transcript, February 2, 1989 hearing, at page 14.  Transcript, February 2, 1989 hearing, at page 35. 42  Transcript, February 2, 1989 hearing, at page 45. 40 41

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approximately where she had left, recounting the deficiencies in the Watermaster’s administration of the judgment, failures in metering wells and monitoring production, and avoidance of any consideration of the potential negative consequences of its replenishment and storage activities. She asserted: That cycle needs to stop or at least it needs to be suspended pending a review by a firm that has management capability to show other options as to how to do that, where to store, when to store, wherein [sic] new procedures should be implemented to best manage the water quality in the basin.43

On that groundwater quality issue, Mr. Smith’s rebuttal on behalf of Watermaster may have come across as dismissive: It is a simple physical fact that because of the historic and current land use in the basin, a certain mass of undesirable elements are in the basin. Primarily nitrates. Those are there. Watermaster cannot change that fact. They are there because they were put there over a period of time or they occur there naturally.44

He continued, not to his client’s advantage it would seem, by offering a “solution to pollution is dilution” argument for the building up of imported water in the basin: But the only way that the nitrates or those undesirable elements that are now in the basin can be removed from the basin is if they are taken out as part of the water that is produced by pumping, or if they flow out of the basin in the lower end as the result of rising water outflow. And as these nitrates or the – this mass of undesirable elements, TDS, flows out of the basin or is taken out of the basin as part of the pumped water, the quality of the basin water will increase. Now, the moving parties state that there is no thought given to the water quality aspect of the basin management program. Again, nothing is further from the truth. The declarations before the Court are that the water that is being placed in  – in the basin – supplemental water that’s being placed in the basin, by and large is of better quality than the water in the basin now. And the long-term net effect of that is a reduction in the total TDS in the water – in the water in the basin. And it will help reduce the total mass of undesirable elements in the basin because it will help speed up the dilution because of the rise of water outflow or the production by the parties. So that there is a knowledgeable and acknowledged [sic] water quality element in place for the Watermaster program.45

Whatever the facts of it, it was an artless statement. The “water quality aspect of the basin management program” was, as the moving parties had argued and feared, pushing the degraded water toward them in order to get it to be extracted by

 Transcript, March 1, 1989 hearing, at page 31.  Transcript, March 1, 1989 hearing at page 67. 45  Transcript, March 1, 1989 hearing, at pages 67–68. 43 44

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wells – their wells. Whatever was not extracted by wells would exit the basin to the Santa Ana River. This was also undesirable, on two grounds. First and most obviously, in a region with limited water resources, deliberately pushing water out of the basin might not be regarded by many basin parties as good resource management. Second, and a matter of which the judge was likely aware, the 1969 judgment between the upper and lower areas of the Santa Ana River committed the Upper Area (which includes Chino Basin) to transmit usable-quality water to the Lower Area. Mr. Smith noted that Watermaster had requested an exemption to allow for this increase in rising water outflow and “the potential degradation of water for the downstream users that would result from the storage of additional water,” but inexplicably stated in the next breath that this request “should in no way be read as an indication or an admission that there is some kind of water quality degradation that will occur as a result of that storage activity.”46 Judge Turner later posed a question to Ms. Trager, which apparently arose directly from Mr. Smith’s statements. The judge asked, “In what way is what they are doing degrading the quality?” Referring to the soils that contained the high concentrations of nitrates, Trager responded, “It pushes water through and it accelerates. It makes the degradation of the water happen faster, and it makes, in effect… the body of contaminated water move faster”47 toward cities such as Chino and Norco and the rapidly developing area served by Water Works District No. 8. Shortly before Judge Turner’s question, Ms. Trager had discussed that rapid development and how it should be taken into consideration by the judge: There has been an allocation of water made under the Judgment which is jeopardized by the continued degradation of the water which, if left unmanaged, will not be available for future generations…. There is a conversion of land from agricultural users, and those people are not filling your courtroom here today. But when the land begins to be converted more and more rigorously – and the trend is upon us of – into domestic use, you are going to see more people concerned about water quality. And this is the area where the problem is.48

Mr. Dougherty spoke on behalf of the City of Ontario, focusing on the matter of the regulation of groundwater storage in Chino Basin. One approach Mr. Dougherty took was to diminish the importance of the controversy over any specific storage arrangement – the estimated available storage capacity of Chino Basin was so vast, he pointed out, that arguing over who had stored a few thousand acre-feet and how was, as he put it, “a phony issue.”49 He also defended Ontario’s particular storage agreement with MWD by, among other things, arguing that it wasn’t really a storage agreement after all. The city had entered into exchange agreements with MWD whereby Ontario would take additional MWD water and leave more of the city’s  Transcript, March 1, 1989 hearing, at page 71.  Transcript, March 1, 1989 hearing, at page 99. 48  Transcript, March 1, 1989 hearing, at page 92. 49  Transcript, March 1, 1989 hearing, at page 87. 46 47

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share of groundwater rights unpumped in the ground – i.e., as in-lieu storage. Mr. Dougherty argued that this was no business of the Watermaster or anyone else. What any party in Chino Basin does with surface water (i.e., imported water from MWD) is not covered by the Judgment, he contended.50 Although Judge Turner’s decision on the moving parties’ lawsuit ultimately did not turn on this issue, Ontario’s argument is worth pausing over here because it is important later. From an overall basin management perspective, it matters whether some kinds of groundwater storage methods are exempt from review or approval – in this instance, Ontario was arguing that if it or any other party built up groundwater in the basin by taking imported supplemental water instead, that kind of “indirect storage” as he termed it was outside the terms of the Judgment and beyond Watermaster’s regulation (and by extension, the Court’s as well). The Judgment, however, had authorized Watermaster to regulate groundwater storage in the basin. Dougherty had distinguished between groundwater accumulation in storage that occurs as a result of the direct recharge of the basin and groundwater accumulation in storage that occurs as a result of reduced pumping and the substitution of an alternate water supply. This may appear to be a minor distinction but it has major implications. If the Judgment and the Watermaster have authority only over some methods of storage and not others, and if parties can effectively store their own water in the basin at their own discretion and on their own authority, that is a substantially different basin management situation than if all groundwater in storage (by whatever means it got there) is subject to the Judgment and to Watermaster regulation. In Chino Basin, this question ended up being resolved later, but at the March 1, 1989 hearing, Ms. Trager linked it back to the water quality issue. “One of the reasons that there’s a problem with water quality,” she stated, “is that there’s, so far, unregulated storage of water in Chino Basin…. It needs to be done in the context of a program for managing the basin.”51 At the end of this second hearing, Judge Turner made his conclusion and intentions clear. He had been persuaded by the motions and declarations filed in the suit and the arguments in the two hearings that Watermaster’s administration of the Judgment needed to improve. “I am concerned,” he said, “that this district [CBMWD] has been in operation, this basin watermaster, has been in operation for as long as it has and there is no socio-economic study and there is no OBMP [optimum basin management plan]. There should be.”52 In his follow-up ruling and order, on July 31, 1989, Judge Turner directed the Chino Basin Watermaster to undertake the water quality and socioeconomic studies as soon as possible, and that he would expect regular reports on their progress.53

 Transcript, March 1, 1989 hearing, at page 84.  Transcript, March 1, 1989 hearing, at pages 110–111. 52  Transcript, March 1, 1989 hearing, at page 121. 53  David Bloom, “Cities Win Battle over Managing Water Supplies.” The Press-Enterprise. Riverside, California, March 2, 1990, p. B-1. 50 51

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7.6  A Lawsuit’s Legacy The significance of this lawsuit and Judge Turner’s decision can hardly be overstated. They set Chino Basin management onto a new path. It took a long time for what started in 1988 to show its full fruit, but the moving parties’ successful challenge to the early basin management regime set off a process of reconsideration that resulted in numerous substantial changes over the next 20 years. The extent and pace of engineering work in the basin made a step-level jump during and after the moving parties’ suit. CBMWD engaged the services of outside engineering consultants to initiate work on several fronts. No doubt this was partly – perhaps even primarily – to allow CBMWD as Watermaster to tell the Court that it was already working on the studies the moving parties requested. Whatever the motivation, the work began and so did the transformation of management activity in Chino Basin. A summary report on engineering work in Chino Basin  – with no identified author or date – was appended to the Watermaster annual report several years later. It provided a timeline of activity in the basin which demonstrated the significant increase that started in 1988–89. According to the report, “Engineering studies done prior to 1987–88 were focused on conjunctive use programs proposed by MWD and DWR, and on the initial review of safe yield. The amount of engineering activity was relatively low.”54 In 1988–89, a groundwater quality monitoring program was designed and it began operation in 1989–90. The monitoring program included directly sampling groundwater from previously unmonitored agricultural and other wells in the southern portion of the basin, and incorporating water quality data that producers throughout the basin in the Non-Agricultural and Appropriative Pools had to submit to various agencies. Data gathering occurred for the next three years, 1989–90 through 1991–92, then resumed in 1995–96 and continued annually thereafter.55 The beginnings of a basin management study started in 1989 as well. CBMWD and the Western Municipal Water District of Riverside County (WMWD) were member agencies of the Santa Ana Watershed Project Authority (SAWPA) and contracted with SAWPA to start work on a Chino Basin study. Those three entities plus MWD and the 21 members of the Watermaster Advisory Committee constituted a study task force, and the four agencies (CBMWD, WMWD, SAWPA, and MWD) contributed funds to launch the study. The task force met for the first time in January 1990. Although initially the study was referred to as an optimum basin management study, once it got underway it was renamed the “Chino Basin Water Resources

 “Summary of Engineering Activities of the Chino Basin Watermaster for the First Twenty Years of Operation 1977–1997.” Report appended to the 1996–97 Annual Report of the Chino Basin Watermaster. 55  “Summary of Engineering Activities of the Chino Basin Watermaster for the First Twenty Years of Operation 1977–1997.” Report appended to the 1996–97 Annual Report of the Chino Basin Watermaster. 54

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Management Study.”56 The study was completed in 1995, but preliminary findings in 1994 added impetus to a shift in management direction as described in the next two chapters. Those seemingly mundane studies for which the moving parties advocated began Chino Basin’s development toward management practices that are more comprehensive, data-dependent, and adaptive. In the meantime, there were transitions on all sides of the moving parties’ lawsuit. Don Peters retired as CBMWD’s Chief of Watermaster Services in 1991, succeeded by Edwin James who moved on a few years later to become general manager of Jurupa Community Services District. In keeping with the rapid urbanization of the southern end of the basin, the City of Chino Hills incorporated in late 1991 in the area that had been served by San Bernardino County Water Works District No. 8. The Water Works District disbanded and its water and wastewater services, and its pumping rights, devolved mainly to Chino Hills with smaller portions picked up by the City of Chino and Monte Vista Water District. Judge Turner retired from the bench, and continuing jurisdiction over the Chino Basin Judgment was assigned to three different judges over the next five years. Closely related to the increased engineering activity and the new studies, another lasting impact of the moving parties’ lawsuit was to bring water resources engineer Mark Wildermuth into Chino Basin. As Susan Trager enjoyed pointing out, Wildermuth was retained by CBMWD within three weeks after the moving parties’ complaint was filed with the Court. At first, he was assigned some portions of the work (e.g., the groundwater quality monitoring program) and other engineering firms performed other portions. Over the next three decades, however, Wildermuth became the primary engineering consultant in the basin and a principal architect – from the engineering side, the principal architect – of Chino Basin’s optimum basin management program and its adaptive management orientation. The moving parties’ suit also triggered a process of change to the Watermaster structure itself. This unfolded over several years. To some extent, the moving parties’ lawsuit had sown doubts within the basin not only about how the basin was being managed but by (and for) whom. As Susan Trager had written in a 1988 law review article about the moving parties’ challenge: “The role of the watermaster in the Chino Basin adjudication is yet to be tested in the more difficult water quality questions that are beginning to become evident in the basin” (Trager, 1988: 59). That turned out to be an understatement.

 “Summary of Engineering Activities of the Chino Basin Watermaster for the First Twenty Years of Operation 1977–1997.” Report appended to the 1996–97 Annual Report of the Chino Basin Watermaster.

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References

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References Blomquist, W., Schlager, E., & Heikkila, T. (2004). Common waters, diverging streams: Linking institutions to water management in Arizona, California, and Colorado. Washington, DC: Resources for the Future. California Department of Water Resources. (1970). Meeting water demands in the Chino-Riverside area. Appendix A: Water supply (Bulletin No. 104-3). Sacramento, CA: State Printing Office. Craig, B. (2020). Stringfellow Acid Pits: THE toxic and legal legacy. Ann Arbor, MI: University of Michigan Press. Skrove, T. (1989). The wonders, wages and woes of wellwater. Aqueduct, 55(1), 5–8. Trager, S. M. (1988). Emerging forums for groundwater dispute resolution in California: A glimpse at the second generation of groundwater issues and how agencies work towards resolution. Pacific Law Journal, 20(1), 31–74.

Chapter 8

Turbulence: The 1990s in Chino Basin

Abstract  In the 1990s, the dissatisfaction with the management of groundwater storage and water quality erupted in a period of open hostility in Chino Basin. The rift entailed not only changes to the basin management approach but a revision to the basin governance structure. A group of groundwater users organized a restructuring of a key component of the basin governance structure, the court-appointed Chino Basin Watermaster. The existing Watermaster entity resisted, and the dispute produced years of turmoil and uncertainty. The judge and a pair of appointed experts became deeply involved in the process also. Toward the end of the decade, a new watermaster was appointed for an interim period and charged with a substantial overhaul of groundwater management in Chino Basin toward a more adaptive program. Keywords  California · Chino Basin · Groundwater · Subsidence · Chino Basin Municipal Water District · Chino Basin Watermaster · Watermaster Advisory Committee · Dairies · Desalters · Groundwater storage · Basin governance

The ground cracked open. In 1991, ground fissures appeared in the southwest portion of the basin, in the City of Chino. There had been some fissures nearby in the 1970s, on the grounds of the State correctional institutions, but those had not resulted in any damage. In Chino at the beginning of the 1990s, a fissure appeared at a street intersection, opening up a crack in the earth that clearly posed a hazard and would require time and money to repair. The most likely cause of such a fissure is land subsidence, and land subsidence is one of the most serious and dangerous effects of groundwater overdraft. In the case of Chino Basin, how groundwater level decline and land subsidence coincided is illustrated in Fig. 8.1. When groundwater is removed from the subsurface and not replaced, the underlying soil is compacted as water empties out from the pore spaces it previously filled. Without the water it once contained, the ground sinks. Subsidence – a decline in land elevation, a sinking of the ground – does not necessarily cause fissuring. Differential subsidence can, however. Differential subsidence means that one area is sinking faster than the adjacent area, and the land at the surface is pulled apart. That was apparently what happened in Chino.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_8

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Fig. 8.1  Groundwater Level Decline 1933-2000 and Subsidence Area. (Source: Chino Basin Watermaster)

It was not only a shock. It was a puzzle. Chino, of course, had been one of the moving parties just two years earlier criticizing the management of the basin, in part because too much water was being recharged and stored too quickly and groundwater levels were rising which was aggravating the nitrate contamination. Now, here was dramatic evidence suggesting the land was sinking due to the underlying soils being dewatered and compacting. How could the basin be filling up too fast and subsiding at the same time? To some, it might have called into question the moving parties’ criticism of excessive unregulated groundwater storage. To Chino and some of the other appropriators in the basin, it reinforced their view that the management approach during the 1980s had been too passive and that a more active effort was needed to understand the basin and how it was being used and how it was responding. In the 1990s in Chino Basin, it seemed everything happened at once. Economic development, population growth, and land use change all continued at a rapid pace. The urbanized communities across the northern half of the basin continued to gain population and business, generating a tremendous increase in wastewater that required treatment and disposal. In the southern half of the basin, where new developments were starting to spring up on old farmland, the largest concentration of dairy cows in the United States had generated a lot of waste of their own. Both waste sources represented significant potential ongoing threats to groundwater quality, and to the quality of water leaving the basin and heading downstream along the Santa

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Ana River. Downstream interests in Orange County, and the state regulators – the Regional Water Quality Control Board – were concerned, to say the least. On the other hand, the treated municipal wastewater also represented an opportunity as a supplemental water source for certain purposes. Perhaps even the degraded groundwater under the southern portion of the basin could be reclaimed through treatment. These possibilities drew attention amid growing concerns that the source of the highest-quality imported water, from the State Water Project, might diminish as state and federal policymakers tried to address environmental problems in the SacramentoSan Joaquin Delta and San Francisco Bay. And while land subsidence due to overdrafting was not entirely new to Chino Basin, it had suddenly become urgent. How to work through these intersecting issues, in both the short and long run, raised new difficulties for the governance structure in Chino Basin. Those who had become dissatisfied by the end of the 1980s with the slow progress on basin planning became more agitated in the 1990s as these groundwater quantity and quality challenges mounted. Additional parties joined in the discontent. Conflicts escalated between and within some of the pool committees, and between some of the producers in the basin and the CBMWD board serving as Watermaster. In the mid-1990s, a period of open hostility broke out that at a minimum disrupted the functioning of the basin governance and management arrangements, and at its height appeared to some to threaten a complete breakdown. Thus, twenty years after it had been inaugurated the Chino Basin governance and management structure ended up back in court. The central issue was replacing the watermaster. Chino Basin Municipal Water District had been serving as the Watermaster since the Chino Basin Judgment was finalized in 1978. By the mid-­1990s, a group of the major groundwater users – mostly serving the urbanized areas of the basin  – wanted to overthrow it and replace it with a structure they believed would be more responsive to their concerns about basin planning, managing storage, and addressing the water quality and subsidence issues. This move set off a multi-year process of institutional change in Chino Basin governance.

8.1  Paying the Piper but Not Calling the Tune As discussed in Chap. 7, the Appropriative Pool’s share of groundwater production, water use, and assessments for basin administration and replenishment had grown during the first 15 years under the Judgment. This was as expected when the adjudication had been designed in the 1970s. If anything, the transition was occurring faster than some had envisioned. This was due not only to the anticipated changes in land use but also the agreement that had been struck in 1988 between the Agricultural Pool and the Appropriative Pool, which sped up the assignment of unused agricultural pumping to the appropriators in exchange for the Appropriative Pool assuming the Agricultural Pool’s share of assessments and special project expenses. It seemed to some appropriators that their increased share of basin water and costs had not translated into a comparable increase in influence on basin

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management and policy direction. The Agricultural Pool retained its maximum ten seats on the Watermaster Advisory Committee, and the Watermaster Board was the five-member Board of Directors of CBMWD, two of whom were directly engaged in agriculture for their livelihoods. Not coincidentally, the 1988–89 moving parties’ lawsuit had pitted three appropriators against the CBMWD as Watermaster. An added wrinkle appeared later when the CBMWD promoted to general manager a staff member who had married into the family of one of the agriculture-related board members. There was nothing against the rules about such a relationship, but it strengthened a perception among some members of the Appropriative Pool that CBMWD as Watermaster tilted somewhat in favor of the agricultural interests within the basin.1 CBMWD’s perceived sluggishness with regard to basin planning activities and its perceived inattention to the water quality issue fed that perception among a growing number of Appropriative Pool members. Everyone paying attention to water and land use in Chino Basin knew that agriculture’s presence in the basin was shrinking and would continue to do so, while the urban and industrial shares rose concomitantly. Similarly, everyone expected that the basin planning and management activities that were finally getting underway, and any remedies for the water quality impairment in the basin in the foreseeable future, were going to be tremendously expensive. To some, it appeared that the Agricultural Pool was playing a waiting game, content to leave things largely as they were for the time being, and that the CBMWD as Watermaster was playing along. As the Appropriative Pool assumed an ever-larger share of the costs of basin management, some of its members felt as though, once most of the agricultural users had left, the appropriators would be stuck with the bill for addressing a century’s accumulation of overdraft and pollution, and now perhaps even subsidence problems. Although these appropriators were not yet able to directly push the Watermaster Board to act, the water quality concerns in the basin also had the attention of others. They included the member agencies of SAWPA, plus the State of California in the form of the Santa Ana Regional Water Quality Control Board (RWQCB, or simply, “the Regional Board”).

8.2  Enter the Desalters SAWPA as a watershed-wide joint powers agency had constructed a “brine line” – the Santa Ana Regional Interceptor or SARI mentioned briefly in Chap. 7 – to collect contaminants, including salts or dissolved solids, from the groundwater and surface water in the upper area of the watershed and convey them to the ocean. The SAWPA brine line was a pipe running parallel to the Santa Ana River from the upper 1  Bowcock interview, July 28, 2017; DeLoach interview, July 25, 2017; Fudacz and Burton interview, September 25, 2017; Jeske interview, July 26, 2017; Markman interview, September 29, 2017; Trager interview, January 30, 1989. See also Green, 1997.

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area through the lower area and to the Pacific. The brine line contained those removed minerals, which otherwise would have flowed toward and into the river, keeping them from mingling with the river water. Otherwise, the accumulated salts would continue to degrade the river in ways that imperiled environmental quality as well as the reuse of that water by Orange County downstream, and violated the “usable water” standard of the Santa Ana River Judgment from which SAWPA was born. SAWPA’s interceptor project provided a funded, functioning answer to the question of disposal of pollutants in Chino Basin (and the other upper-area groundwater basins) if Chino Basin water producers could find a way to extract those pollutants and get them to the brine line. As already noted, CBMWD was a SAWPA member. So was Western Municipal Water District of Riverside County (WMWD) which overlies the portion of Chino Basin along and to the east of the Santa Ana River. CBMWD could potentially collaborate on a groundwater treatment facility with any of the local water agencies within its territory, and with WMWD, which could also potentially collaborate with any of the local water agencies within its territory. This idea of removing some of the degraded groundwater from the basin, treating it to remove contaminants and produce usable-quality water, and disposing of the unwanted wastes through the SAWPA brine line gave rise to the Chino Basin desalters. “Desalting” is a name for water treatment that removes dissolved solids from water (collectively referred to as “salts” even though some of these minerals and other constituents are not what many of us think of when we hear that word). Desalting facilities provided an alternative to the “dilution solution” that had been presented to Judge Turner in 1989 by CBMWD’s attorney. Instead of adding water at the northern end of the basin and pushing the degraded water to and through the southern end of the basin and out to the river, it was possible to extract the degraded groundwater within the basin and treat it, both to remove the contaminants and recover a supply of usable quality water. Desalting promised to be less harmful to the growing communities at the southern end of the basin, to the river itself, and to Orange County. It would also be an expensive and complicated undertaking. Ever since they were conceived, desalting facilities in Chino Basin have turned out to be at the center of every solution and every problem. The history of adaptive groundwater management in Chino Basin since the 1990s is in large measure a story of the desalters.

8.3  The Regional Board and the Dairies One of the principal sources of “salts” in Chino Basin were the dairies. The concentration of dairy cattle in Chino Basin in the 1980s and 1990s was the greatest in the United States and perhaps the world. At its zenith, the 16,000-acre Chino Basin Agricultural Preserve (as the area was known) was home to 330,000 cattle which, in addition to producing a tremendous amount of milk, produced millions of pounds per day of manure which contains a great deal of nitrogen and other elements – you

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know, “salts.” Although the high mineral content of groundwater in Chino Basin may also come partly from natural soil composition and from other historical land uses, by the 1990s the executive director of the Regional Water Quality Control Board identified the dairies as the preeminent water quality problem in the Santa Ana River watershed.2 From a soil and water contamination perspective, the dairy problem was not solely or simply a problem of manure being dropped on the ground. Most dairy farmers constructed manure containment structures on their farms but, when occasional heavy winter storms hit the area, storm water would overwhelm these on-­ farm containment facilities and push streams of manure-laden runoff across the landscape and toward the river. Also, as a regular maintenance and operations practice, dairies washed the cattle to reduce bacterial contamination of the milk they produced, and these daily volumes of dairy wash water sank into the ground as well. The dairies were also organized, well connected, and influential. The Milk Producers Council had been and continued to be an association with strong and effective representation in the halls and chambers of state government in Sacramento and the federal government in Washington, DC.  They presented themselves convincingly as independent family farmers just trying to make a living, and as responsible stewards of their land and livestock. With this image, backed by effective lobbying and funding, they functioned largely as a contained self-governing community with minimal interference from government regulators for many years. In 1993, the Regional Water Quality Control Board began a new effort to address the dairy issue. The Chino Basin Watermaster annual report for 1993–94 contained this characteristically understated paragraph: During FY 1993–94 the need for a desalter again came to the attention of Watermaster. The California Regional Water Quality Control Board, Santa Ana Region, requested that dairymen and farmers in the Overlying (Agricultural) Pool pursue more timely mitigation of the salt loading in the Chino Groundwater Basin. The Overlying (Agricultural) Pool retained the services of special legal counsel to work with the RWQCB to develop an acceptable mitigation.3

As will be discussed later, the Agricultural Pool was not the only group that began to employ its own legal counsel around this time.

8.4  Why Desalters Are Complicated in Chino Basin The prospect of groundwater extraction and treatment via desalting facilities  – “more timely mitigation” in the words of the annual report – was being pushed up the agenda in Chino Basin. As mentioned earlier, there were obvious benefits to be

 Thibeault interview, October 26, 1998.  Chino Basin Watermaster, Seventeenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1993–94. 2 3

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captured from the construction and operation of desalters: creating a new source of usable water out of the impaired groundwater, exporting the pollutants – the brine – from the basin via the SAWPA interceptor, making the land that was being converted from agriculture better suited for urban development, and satisfying the Regional Board. Nevertheless, most Chino Basin parties were not enthusiastic. In the particular context of Chino Basin, there were multiple impediments to moving forward with desalters, and those impediments were institutional as well as financial. Some of the financial challenges were clear. Most immediately, there was how to pay (and therefore who would pay) for the construction of one or more desalter facilities. Once they were built, their operation and maintenance would have to be paid for – presumably, by finding purchasers of the usable water they produced. What that water would cost, and whether anyone in the basin would be willing to pay for it, was not immediately certain. Nor was the question of to whom the produced water would belong – whether to regard it as a water supply available for purchase, as a kind of public good belonging to the whole basin, or what. Beyond those relatively obvious issues that would have been faced by users in any groundwater basin, there were complications peculiar to Chino Basin. The Chino Basin Judgment had allocated all the Basin Safe Yield among the parties, and any groundwater production beyond those amounts was subject to an assessment from Watermaster to pay for replenishment water to offset the over-production. As the parties have occasionally expressed it, a fundamental principle of the Chino Basin adjudication is “bucket for bucket” replenishment. If desalter facilities were sited and operated in Chino Basin, groundwater would be extracted to feed the desalters. The prospect of desalting Chino Basin groundwater translated into the prospect of taking a new slice out of an already fully allocated and fixed pie. Were any parties going to give up their respective shares of the basin in order to supply one or more desalter facilities? Absent any volunteers to hand over their pumping rights to supply the desalter project, pumping for the desalters would have to be offset by replenishment water. That meant parties would have to pay replenishment assessments to Watermaster. This possibility was troublesome as well. Among other things, to some parties it raised fairness concerns. Back in 1988, the Appropriative Pool had agreed to pay all assessments of the Agricultural Pool in exchange for the yearly transfer of unpumped Agricultural Pool water. Many members of the Appropriative Pool saw the groundwater quality problem – at least the worst of it, in the southern half of the basin – as having been created primarily by the Agricultural Pool, but replenishment assessments were paid almost entirely by the Appropriative Pool (save for the small amounts paid by members of the Overlying (Non-Agricultural) Pool if they pumped more than their allocation). Appropriators now faced exactly the situation many had feared  – becoming financially responsible for basin clean-up actions. For those members of the Appropriative Pool already inclined toward resentment of the Agricultural Pool, this prospect was enough to turn resentment to anger. Moreover, since their water needs were growing, the appropriators within the basin were the most obvious prospective buyers of the cleaned-up water produced by the desalters. They might therefore be paying replenishment assessments for the

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groundwater pumped and fed into the desalters, and then paying again to purchase the output. But however much the appropriators resisted or resented, the Agricultural Pool could not be expected to undo its 1988 agreement with the Appropriative Pool and start paying replenishment assessments again (“a deal’s a deal”), and the Regional Board had made clear that it wanted its “more timely mitigation.” Over the course of 1993, several special meetings of the pool committees, Watermaster Advisory Committee, and Watermaster Board (CBMWD) wrestled with the question of how to reconcile or resolve this issue of replenishing the water that would be extracted for a desalter project.4 The parties in their respective pools as well as the Watermaster staff and board were looking for a way to make desalting work, if possible without the need for replenishment assessments. On October 7, 1993, the Watermaster Board approved Resolution 93-10-1, which set forth a list in priority order of possible sources of water to feed the desalters and thus offset the replenishment obligation on the parties. Most of the items on the list were water that presumably no one would have to pay for, at least in the form of replenishment assessments. Resolution 93-10-1 stated that water for the desalter project would come from: • First priority: “Interception of rising water leaving the basin”; • Second: “Use of reclaimed water to recharge the basin”; • Third: “Water available from either transfers or abandonment by members of the Overlying (Non-Agricultural) Pool”;5 • Fourth, “Water stored in Watermaster accounts”;6 • Fifth, “Other new water introduced to the basin”. The possibilities mentioned were increased inflow from other basins or water from the river, and additional capture and recharge of storm water runoff. Perhaps, then, a desalter project could go forward without having to take pumping rights or replenishment payments from anyone. At least the board members could agree on the hope. If those hopes were not fulfilled, however, the replenishment for the desalters would have to be paid for with replenishment assessments. In that case, the Appropriative Pool was on the hook for those payments, under the terms of the 1988 4  Chino Basin Watermaster, Seventeenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1993–94. 5  The mention of “transfer or abandonment” requires a little explanation. One of the members of the Non-Agricultural Pool with assigned annual pumping rights under the Judgment, Kaiser Steel, was already in negotiations with the Regional Board over the remediation of a groundwater contamination plume that had been linked to its facilities and operations. Kaiser was also contemplating closing down and/or selling its plant. These anticipated moves created the possibility that some stored water in Kaiser’s storage account and/or its unused pumping allocation might become available and could therefore be a component of the supply source for the desalter project. 6  Obviously, water stored by the parties in their respective Watermaster accounts would constitute a real loss of available water to them, but water drawn down from a storage account is not subject to a replenishment assessment. It therefore could be a source of supply for the desalters for which the parties would not be taxed.

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agreement between the pools. The Agricultural Pool would not be paying. At one point, the Regional Board had recommended a property tax on land in the agricultural preserve to pay for basin clean-up. If that had occurred, the economic value of the agricultural land would have been diminished – prospective buyers would be inheriting the additional property tax burden, and presumably would not have been willing to offer as much to purchase the land. This would have harmed the future financial prospects of the agricultural landowners, who planned to sell and leave when the time was right. In the Watermaster Board’s adoption of Resolution 93-10-1, appropriators perceived the CBMWD board once again to be taking care of the agricultural interests in the basin (Green, 1997: 78–79). Reinforcing that perception was language such as this in the resolution: “Nothing herein shall be deemed an admission of wrong doing by the producers of water from the basin regarding water quality degradation currently or historically occurring in Chino Basin.” Negotiations with the Regional Board were ongoing, and the Regional Board held the authority to impose fines and order remedial action. Everyone wanted to show the Regional Board and downstream interests that they were interested in proceeding with a desalter project, and no one wanted to acknowledge any responsibility for the problem that had generated the need for the desalter project. In its negotiations with the Regional Board and with the other Chino Basin parties, the Agricultural Pool agreed to dedicate 6000 acre-feet of its stored water to the desalter project. Resolution 93-10-1 characterized this as a “contribution by the Overlying (Agricultural) Pool to the desalters which should satisfy the… requirements mandated upon Overlying (Agricultural) Pool members by the Regional Water Quality Control Board.” Like all the others, the Agricultural Pool denied any past wrongdoing, but it took the added step of declaring itself absolved by this one-­ time contribution of water. Also seeking absolution was Kaiser Resources, Inc., known locally by the simpler name Kaiser Steel. An agreement between Kaiser Steel and the Regional Board over groundwater contamination associated with Kaiser’s facilities in the basin included a commitment by Kaiser to turn over to Watermaster 25,000 acre-feet of stored water accumulated in Kaiser’s account. By surrendering the water, Kaiser reduced the amount of its fine from the Regional Board. The Regional Board, in turn, achieved more leverage in trying to push Watermaster and the parties in Chino Basin toward the implementation of the desalter project. The Regional Board had in effect brokered 25,000 acre-feet of “free” water with which the Chino Basin Watermaster could feed the desalters without any replenishment obligation  – Watermaster could simply take that water out of Kaiser’s storage account. The Watermaster Board approved Resolution 94–3 accepting the abandoned stored water and agreeing to commit it to the desalter project, that is, once there were desalters. The Regional Board continued to press for a larger and more permanent supply of water for the desalter project. In 1995 further negotiations focused on incorporating the stored water surrendered by Kaiser Industries and establishing an annual commitment of water from the Watermaster and parties. Over the course of the 1995–96 fiscal year, several meetings were held among Regional Board staff,

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Watermaster board and staff, representatives of Watermaster parties, plus representatives from Western Municipal Water District and Orange County Water District who were affected by rising volumes of degraded Chino Basin water moving toward the Santa Ana River. Chino Basin parties made some additional concessions but still wanted to find a way to limit their liability, especially the agricultural producers. By June 1996, the Regional Board and Watermaster entered into an “Agreement Regarding an Alternative Water Supply Source for the Replenishment Obligation Offset of the Chino Basin Desalter”, and the Advisory Committee and Watermaster board approved Resolution 96–3, “A Resolution of the Chino Basin Watermaster to Financially Support the Development of Additional Desalting in the Chino Basin to Protect the Safe Yield of the Basin.”7 Among other things, the agreement and resolution clearly and irrevocably put the Watermaster (and, because of the way replenishment assessments work, the Appropriative Pool) on the financial hook for the construction and operation of desalters – not only the initial desalter facility that had been planned, but “additional desalting or other technologies [that] may be required in order for agencies to be able to develop water in the lower portion of Chino Basin for domestic use and to protect the existing Safe Yield of the Basin.” The agreement obligated the Watermaster to provide 12,000 acre-feet per year of groundwater for the desalter project, to be offset with replenishment water if needed. However, the new agreement and resolution also largely reiterated the language of the 1993 resolution about the priority order of water sources for the desalter project – buying replenishment water for the desalters was a last resort, and the preferred sources of water to feed the desalters were (a) intercepted water that would otherwise have exited the basin toward the river, and (b) induced inflow to the basin from the river. There was still enough consensus on this aim to secure the needed votes for the agreement and resolution, even if no one was sure yet whether it would work out that way. At a minimum, it seemed to be enough to take care of the agricultural interests and enable the expanding urbanization in the southern half of the basin for the time being.8

7  Chino Basin Watermaster, Nineteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1995–96. 8  Western Municipal Water District (WMWD) expressed its doubts, however, in a memorandum published three months later, in September 1996. The WMWD memorandum stated that the 12,000 acre-feet committed in the agreement would only suffice to address the current increased volume of salts flowing toward the river; it would not make a dent in the accumulated salts that had built up within Chino Basin for decades, and something would still have to be done about those. “Watermaster General Counsel Fudacz was directed to respond to WMWD that while the Watermaster parties did not necessarily agree, they contemplated basin clean-up as the agricultural industry moves out of the area and the demand becomes an urban demand rather than an agricultural demand” (Chino Basin Watermaster, Twentieth Annual Report of the Chino Basin Watermaster, Fiscal Year 1996–97). Although surely not intended as such, it was an admission of Susan Trager’s 1989 argument to Judge Turner that the groundwater quality issue would indeed be left to “future generations.”

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8.5  Meanwhile, Back to the Storage Issue Desalters were not the only topic of conversation in Chino Basin in the early 1990s. How to use the storage capacity of the basin continued as well. As described in Chap. 7, the plans and agreements to have MWD store potentially vast amounts of groundwater in Chino Basin  – i.e., the prospect of a large-scale conjunctive-use program – were a subject in the moving parties’ lawsuit in 1988–89. The original magnitude of the planned program had been 1,500,000 acre-feet – equivalent to the amount of dewatered storage space estimated in the basin as a result of decades of accumulated overdraft prior to the 1978 Judgment. The draft environmental impact report prepared by MWD in 1988 for the conjunctive-use program indicated that this amount of water could not be added back into the basin due to environmental concerns including the water quality impacts of raising groundwater levels to that extent. The planned size of the project was cut in half, to a maximum of 750,000 acre-feet. Then, during the time of Judge Turner’s 1989 ruling in the moving parties’ lawsuit and the initiation of the basin study in 1990, “Metropolitan suspended development of the storage program shortly after the release of the DEIR due to institutional differences among Chino Basin producers and due to environmental concerns” in the careful language of a later report.9 The plan to have large quantities of MWD water stored in the basin had gone dormant for a while. But not for long. In 1992, MWD entered into a Memorandum of Understanding (MOU) with all three MWD member agencies overlying portions of Chino Basin – Three Valleys Municipal Water District, WMWD, and CBMWD  – and with the Chino Basin Watermaster (also CBMWD) “for the purposes of establishing the principles of a Demonstration Project for the storage of water by MWD in the Chino Groundwater Basin.”10 Needless to say, news of this agreement was not received well by some of the Chino Basin parties. CBMWD’s action in entering into this MOU with MWD, both for itself as a MWD member agency and in its capacity as Watermaster, renewed the concerns of some parties and raised concerns with others about whether CBMWD was truly representing the interests of all producers in the basin. The fact that the MOU was not mentioned in the FY 1992–93 Watermaster annual report11 – however unintentional that may have been – compounded the suspicions and questions. Around this time, some members of the Appropriative Pool had begun to meet informally – outside of regular Pool Committee meetings – to discuss their shared concerns. This time it was not at the initiative of the lower-basin appropriators such 9  “Summary of Engineering Activities of the Chino Basin Watermaster for the First Twenty Years of Operation 1977–1997.” Report appended to the 1996–97 Annual Report of the Chino Basin Watermaster. 10  Chino Basin Watermaster, Seventeenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1994–95. 11  “Notification regarding this activity was inadvertently left out of the FY 1992/93 Sixteenth Annual Report.” Chino Basin Watermaster, Sixteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1993–94.

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as Chino, Chino Hills, and Norco who had led the 1988–89 challenge to Watermaster practices. This time it was led by some upper-basin appropriators  – Cucamonga County Water District (since renamed Cucamonga Valley Water District) and the City of Pomona – plus the City of Ontario, which had actively opposed the moving parties’ lawsuit. What the upper-basin and lower-basin appropriators shared was a desire to exert more influence over basin decision-making and the perception that CBMWD as Watermaster was still primarily attentive to agricultural interests in the basin.12 During FY 1993–94, the Watermaster Advisory Committee retained its own special legal counsel for the negotiations with MWD and others over the prospective conjunctive use program.13 Thus by 1994, CBWMD as Watermaster had its general legal counsel, the Agricultural Pool had its own special counsel for the negotiations with the Regional Board, and the Watermaster Advisory Committee had its own special counsel for the conjunctive-use storage issue. CBMWD, as itself and as Watermaster, attempted to keep things moving forward on the conjunctive-use project, approving extensions during FY 1993–94 of its Cyclic Storage Agreement with MWD and of the agreement with MWD and the other MWD member agencies for the conjunctive-use project. Watermaster Advisory Committee and CBMWD as Watermaster appeared, to say the very least, to not be on the same page regarding storage agreements with MWD, and now they had separate lawyers too. Eventually, whether because it became aware of the discontent or for other reasons, MWD again suspended its pursuit of the conjunctive-use storage program “when it appeared that Watermaster and MWD could not develop an agreement to allow MWD to store water in the Chino Basin.”14

8.6  Good News and Bad News In the midst of these developments and rising tensions, some other matters progressed. The five-year appointment of CBMWD as Watermaster was coming to an end, and the Watermaster Advisory Committee voted in March 1993 to recommend the reappointment of CBMWD for a fourth 5-year term.15 The metering of wells, which had been a subject in the moving parties’ complaint, moved forward with Watermaster Board approval in July 1993 of procedures for implementing a Special Project concerning Meter Installation and Repairs targeting the unmetered  DeLoach interview, July 25, 2017.  Chino Basin Watermaster, Seventeenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1994–95. 14  “Summary of Engineering Activities of the Chino Basin Watermaster for the First Twenty Years of Operation 1977–1997.” Report appended to the 1996–97 Annual Report of the Chino Basin Watermaster. 15  Chino Basin Watermaster, Sixteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1992–93. 12 13

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Agricultural Pool wells. Also, as already noted, after a series of special meetings through the year, in October 1993 the Advisory Committee and the Watermaster Board approved Resolution 93-10-1 addressing the potential alternative water supply sources for the desalter project. Of these developments, the Advisory Committee’s vote to recommend reappointment of the CBMWD as Watermaster may be the most surprising in light of all the stirrings going on at the time. It is a strange story in another way, as well. It appears that, after the Advisory Committee voted to recommend CBMWD’s reappointment, nothing further happened. The normal course of this process would be (1) Advisory Committee’s recommendation, followed by (2) Watermaster Board vote to present the motion for reappointment to the Court, followed by (3) an order from the judge either approving or disapproving the motion for reappointment. Step 1 occurred but it is not clear what (if anything) happened after that. In any event, the fact that CBMWD had not formally been reappointed – that, in fact, no Watermaster had been formally appointed – after 1993 became relevant later. Traci Stewart became Chief of Watermaster Services in 1994, after Edwin James accepted the position of General Manager at Jurupa Community Services District. Ms. Stewart remained as Watermaster Services Chief from 1994 until 2001, directing the administrative work of the Chino Basin Watermaster as well as overseeing the various studies and projects throughout what proved to be the most tumultuous period of basin management and governance. During 1994–95, parties (mostly from the Appropriative Pool) and Watermaster staff worked on revised and simpler procedures for the land-use conversions provided for in the 1978 Judgment. The work resulted in a motion presented to the Court in November 1995 and approved, for an amendment to the Judgment replacing its land-use conversion language with the revised procedures. Last but far from least, in 1994 and 1995 work concluded on the Chino Basin Water Resources Management Study  – the study that began in 1990 after Judge Turner’s ruling ordering Watermaster to initiate an optimum basin management study. The study was intended to consider the basin’s yield, pumping, storage, recharge, and water quality all together. Preliminary findings were available in late 1994 and the final study report was completed in 1995. Based on the preliminary findings, the Watermaster Advisory Committee recommended that the time had come to consider storage limits – not just storage accounts, which already existed, but limits on how much storage should occur in the basin. Concurrent with that, in the Advisory Committee’s view, should be consideration of storage losses, i.e., of what volume of water stored in the basin is lost and at what rate to underflow or rising water leaving the basin. The consulting engineer Mark Wildermuth was asked to review the modeling done for the Water Resources Management Study and to develop a report during 1995–96 on the issue of storage losses. In the meantime, the Advisory Committee recommended and the Watermaster Board agreed to cap the amount of water that could be stored in the basin at the quantities existing at the end of FY 1994–95, June 30, 1995. Probably the most significant finding in the Water Resources Management Study’s 1995 report was that the status quo operation of the basin was unsustainable

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in the face of anticipated changes. Depending on one’s perspective, this was a kind of vindication of the moving parties’ 1988 complaint. The study considered different alternative scenarios, one of which, “the baseline alternative was an extrapolation of the status quo” regarding pumping, recharge, and replenishment. This baseline scenario was projected out to the year 2040, incorporating the anticipated conversion of the agricultural areas within the basin to urban uses, with water supply and wastewater services being provided to that growing population and economy by the municipalities, utilities, and water companies in the area. The predicted result would be “widespread overdraft and groundwater quality degradation.” In summary, the “baseline alternative is not feasible.”16 Things would have to change. Four other scenarios were also modeled in the study. These four alternatives involved various combinations of “regional groundwater treatment capacity (multiple projects and varying capacity), reclaimed water recharge, imported water recharge, conservation and conjunctive use.” The “regional groundwater treatment capacity” meant desalting facilities. The good news message: “All four alternatives were economically feasible at the macro level, that is, when viewed as basin-wide average costs.”17 Changing the ways in which the basin was managed was at least plausible from both physical and financial standpoints. The unstated bad news was that the concept of “basin-wide average costs” is a bit of a fiction. The reality was and is that those “macro level” benefits and costs would need to be allocated across different kinds of water users and communities, with different needs and capacities, in different parts of the basin. For the basin as a whole, there were net gains to be secured from change; for individual parties, the balance sheet might look quite different.

8.7  Management Disputes Become Governance Disputes The tensions over CBMWD’s role as Watermaster had continued to escalate. In 1994, the Watermaster Advisory Committee shifted from having a special legal counsel just for the conjunctive-use storage issue to having its own general legal counsel for all matters. The attorney and firm it had retained for special counsel – Frederic Fudacz with Nossaman, Guthner, Knox and Elliott LLP  – became the Advisory Committee’s general counsel. Now the Watermaster (CBMWD) and the Watermaster Advisory Committee had separate lawyers for all issues, not just the storage question. The next escalating step was the Advisory Committee’s recommendation in December 1994 that the Watermaster staff purchase and operate its

 All quotes from “Summary of Engineering Activities of the Chino Basin Watermaster for the First Twenty Years of Operation 1977–1997.” Report appended to the 1996–97 Annual Report of the Chino Basin Watermaster. 17  Ibid. 16

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own stand-alone computer system separate from CBMWD’s.18 Under other circumstances it might have seemed a trivial matter. In the increasingly charged atmosphere in the basin at the end of 1994, however, the Advisory Committee’s move was an outward expression of a lack of confidence or lack of trust in CBMWD, and a first move toward separating the Watermaster staff from the district. These Watermaster Advisory Committee actions in 1994 demonstrated two developments. One was that what began as dissatisfaction with CBMWD among some Appropriative Pool members had spread, not only across the Appropriative Pool but to at least some members of the other pools as well. More complex coalitions had emerged, with an Advisory Committee majority composed of most (but not all) Appropriative Pool members joined by several Non-Agricultural Pool members and at least one Agricultural Pool member (the State of California) who were interested in change versus most Agricultural Pool members and some Non-­ Agricultural Pool and Appropriative Pool members who remained aligned with the status quo. The other development was that disagreements over basin management actions had become disagreements over who was, and who should be, in charge of basin decision-making. Those disagreements crystallized into a referendum on the CBMWD’s role as Watermaster. In 1995, the Watermaster Advisory Committee requested its attorney, Fred Fudacz, to provide the committee members with a summary of watermaster structures used in other adjudicated groundwater basins in California. Fudacz presented a list, with no recommendation, of the existing options.19 Advisory Committee members quickly gravitated toward what had been done in a couple of nearby basins. There, the Watermaster was not a single agency but a representative body composed of stakeholder representatives – pumpers as well as other stakeholders. As noted in Chap. 6, the nearby Main San Gabriel Basin had initiated this approach back in the 1970s, with a nine-member Watermaster comprised of a mixture of groundwater producers and overlying water districts. In the 1980s, Raymond Basin – just north of Main San Gabriel and west of Chino Basin – had switched to the Main San Gabriel style, creating a nine-member Raymond Basin Management Board in 1984. A large proportion of Advisory Committee members were drawn to this model for a number of reasons and, as mentioned in Chap. 6, such a watermaster structure had been considered during the adjudication process. First, it would increase their control over basin management decisions, activities, and even finances – not only did CBMWD not cover the whole basin, but CBMWD’s elected board represented geographic divisions within the water district that did not necessarily correspond to the array of interests in the management of the basin. Second, the multi-member board model was familiar  – several individuals who were active in Chino Basin, either with one of the water companies or other companies or municipalities, were

18  Chino Basin Watermaster, Eighteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1994–95. 19  Fudacz and Burton interview, September 25, 2017.

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also active in the Main San Gabriel Basin and therefore understood how it was structured and how it operated.20 Third, at least in the 20 years of Main San Gabriel Basin and 10  years of Raymond Basin experience, it seemed to have functioned reasonably well. On the other hand, many Advisory Committee members had their own variation on the multi-member board of stakeholders in mind. Rather than constitute a separate board, one idea was to have the Advisory Committee itself replace CBMWD as the Watermaster. Part of the logic behind this alternative was to simplify the basin decision-making process. As described in Chap. 6, under the Judgment, the Watermaster Advisory Committee serves as a policy-making body in Chino Basin, with its recommendations and decisions carried out by the Watermaster appointed by the Court (at the time, CBMWD). One of the greatest sources of irritation among members of the Watermaster Advisory Committee with CBMWD was that, on occasion, the district board had failed to take action in accordance with Advisory Committee direction. Some Advisory Committee members thought basin governance and management could be streamlined and this recurring source of irritation removed if the Advisory Committee simply functioned as the Watermaster. Either way, having an alternative to the status quo was important. Being dissatisfied with some – even many – of CBMWD’s decisions and actions would not necessarily translate into institutional change unless there was some idea of what could take the district’s place. An old adage in politics is that “you cannot beat something with nothing.” Once Chino Basin producers – especially the appropriators – were able to envision a realistic alternative to the way things had been for the first 17 years under the Judgment, the momentum for change grew. Still, deliberation about alternatives is not the same as action. Advisory Committee members were spurred to action by two additional developments in 1995. One was the realization that CBMWD actually had not been reappointed by the Court as Watermaster back in 1993. Everyone became aware of this fact at the very moment that Advisory Committee members were contemplating whether and how to change from CBMWD to some other watermaster structure. Suddenly, it was not clear whether CBMWD was really the Watermaster for Chino Basin  – indeed, it was not clear that anyone was. To some, this opened a window of opportunity for taking action to initiate a change. That window opened wider as news spread of what occurred at an Agricultural Pool Committee meeting. To understand its significance of this, we have to draw together three issues that have been described earlier and add a fourth one. • First, despite the statements by the Watermaster in Resolution 93-10-1 absolving Chino Basin producers from wrongdoing and declaring the Agricultural Pool’s one-time contribution of 6000 acre-feet of stored water to the desalter project to be the limit of its liability, the Regional Water Quality Control Board continued to press the Watermaster and the parties for basin clean-up action. In particular, the Regional Board wanted to see an ongoing supply of groundwater committed 20

 Bowcock interview, July 28, 2017.

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to the desalter project, not just the one-time dedications of stored water from the Agricultural Pool and from Kaiser Steel. • Second, as described in Chap. 6, the 1978 Judgment had envisioned the transition of unpumped Agricultural Pool water to the Appropriative Pool through the processes of transfer and land-use conversions. Appropriative Pool members – especially the municipalities and water companies  – had planned on gaining access to those groundwater rights in order to accommodate and serve the growing population and economy of the basin as agriculture’s presence and water needs diminished. • Third, as described in Chap. 7, the Agricultural and Appropriative Pools had entered into an agreement in 1988 to accelerate the process of transferring unpumped Agricultural Pool water to the appropriators. Instead of those transfers occurring at five-year intervals, they would occur each year, and in exchange for gaining earlier access to the Agricultural Pool’s unpumped water, the Appropriative Pool would pay the Agricultural Pool’s assessments. • Fourth, due to policies adopted at the state level, by 1995 Chino Basin appropriators felt increased pressure to demonstrate that they possessed firm and reliable water supplies. In 1983, the California Legislature had enacted a requirement21 that public water suppliers prepare and submit Urban Water Management Plans to the California Department of Water Resources every five years beginning in 1985. Urban Water Management Plans were required to include five-year projections of water demands in each supplier’s service area and how (i.e., from what sources in what amounts) the supplier would meet those needs. In 1995, the California Legislature added an “assured water supply” requirement.22 From that point forward, Urban Water Management Plans had to specify longer-term water supply availability to support projected future development. For most appropriators in Chino Basin, groundwater  – which for them included access to the unpumped Agricultural Pool groundwater – was their most reliable water supply source and the foundation of their assured water supplies to sustain the rapid development that was under way. In the context of those four factors, what happened at the November 9, 1995 Agricultural Pool Committee meeting set off alarms across the basin. Bill Hill, a member of the CBMWD Board of Directors, suggested that some kind of “negotiated pact” was being worked out with the Regional Board whereby the Agricultural Pool would commit a significant share of its pumping rights (18,000 acre-feet per year) to the desalter project.23 CBMWD would build and operate the desalters, the Agricultural Pool would turn over a share of its groundwater rights to CBMWD to feed the desalters, and through this arrangement both CBMWD as Watermaster and the Agricultural Pool presumably could reach the goal of absolution from future liability from the Regional Board.  California Water Code Section 10620.  California Water Code Section 10635. 23  Green, 1997 at 11–14 and 77–79. 21 22

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Appropriative Pool members were shocked and angry.24 In their view, the Agricultural Pool had already agreed, both in the Judgment and the 1988 agreement, to transfer its unpumped and unneeded groundwater to them. Furthermore, they were counting on it. Trying to find as much as 18,000 acre-feet per year of water from other sources presented two serious problems  – reliability and cost. Imported water from Metropolitan, once envisioned as Southern California’s steady albeit expensive supply, had become less and less certain over time. Local supplies such as surface water and storm runoff were variable and depended on the vagaries of the weather. Even recycled wastewater, which was being developed throughout the region as an alternative water supply source thanks to advances in technology, was still expensive compared with groundwater and could not be served directly to customers for potable use. Appropriators perceived Hill’s suggestion as an Agricultural Pool sellout  – the agricultural interests striking a deal to get the Regional Board off their backs by offering up a water source that the appropriators saw as already committed to them. Expressions such as “a double-cross” and “the straw that broke the camel’s back” floated in the air.25 In addition to this vehement reaction from Appropriative Pool members about the ramifications of such a deal for their interests and futures, the wider Watermaster Advisory Committee reacted strongly. They perceived Hill’s comments as going to the heart of their grievance about governance. As mentioned, Hill was a member of the CBMWD board to directors. Despite the odd circumstances of CBMWD’s reappointment – or non-reappointment – it had been continuing to act as if it were the Watermaster. One way of viewing Hill’s statement was that, without approval or direction from the Advisory Committee, CBMWD acting as Watermaster was apparently conducting some sort of negotiation with the Regional Board to trade away part of the Basin Safe Yield for the desalters, and to do so in ways that would greatly advantage some Chino Basin parties (the Agricultural Pool generally and the dairies most obviously) and greatly disadvantage others.

8.8  “Chinotown” That colorful term was coined by a local newspaper columnist in March 1997 as he tried to describe the fight over Chino Basin governance that took place.26 Even discounting for a certain amount of journalistic license, the expression appears to have captured the intensity and animosity of what transpired.27  Grindstaff interview, September 26, 2017.  Green, 1997: 77, quoting the declaration of Watermaster staff member Michelle Lauffer characterizing various producers’ reactions. 26  Chris Reed, “Now Playing in Your Area: Chinotown.” Inland Valley Daily Bulletin, March 19, 1997. 27  Green, 1997 provides a contemporaneous account of the events of 1996 and 1997. Although Green was not an entirely impartial observer, his report of what took place is largely verified by other documents of the time as well as interviews I conducted during the late 1990s. 24 25

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To those unhappy with CBMWD as Watermaster, Hill’s remark suggested suspicious and surreptitious deals being made by the district, which was already seen as favoring the agricultural interests in the basin. Organizational, family, and financial ties among various individuals and organizations became fodder for the conjuring of conspiracies – for instance, the CBMWD staff member mentioned above who had married into a board member’s farm family was elevated to CBMWD general manager in 1994, and also had been chair of the board of directors of Monte Vista Water District, one of the few Appropriative Pool members that generally sided with and defended CBMWD. CBMWD’s recurring efforts to enter into deals with MWD for storage and exchange of water in Chino Basin were rumored to involve financial advantages for the district and some of the parties. From the opposite side came allegations that Advisory Committee members were engaged in a coup to overthrow CBMWD. They wanted to have unfettered control over the basin for their own purposes and to serve their own interests, to capitalize on the rapid urbanization of the basin with no one to stand in their way. By insisting on having their own lawyer, questioning and challenging more of CBMWD’s actions, and trying to drive a wedge between the CBMWD board and the Watermaster staff, the Advisory Committee was portrayed as making a difficult situation worse. From the end of 1995 through 1997, this enmity played out in a series of actions and reactions. The first was a Watermaster Advisory Committee vote on January 25, 1996, by a 71.64% majority to recommend to the Court that the Advisory Committee be appointed as Watermaster.28 The Advisory Committee directed its attorney, Fred Fudacz, to file the motion with the Court. Under the Judgment, as explained in Chap. 6, the Advisory Committee is authorized to recommend who should be appointed as Watermaster. Furthermore, the Judgment calls for the Court to appoint whomever the Advisory Committee recommends unless the Judge finds a “compelling reason” not to do so. Under these rules, the Advisory Committee’s decision clearly placed CBMWD on the defensive and changed the strategic situation regarding basin governance. Instead of the default assumption that CBMWD would continue as Watermaster from simple institutional inertia, which many in the basin understandably would have thought, the Judgment’s provisions regarding the appointment of the Watermaster meant that CBMWD would be removed unless the Judge decided to keep it. The Court was thus brought into the middle of the dispute over control of Chino Basin management.

 Chino Basin Watermaster, Nineteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1995–96. Green’s (1997: 47) account of this meeting states that, before the vote, “one member of the Appropriative Pool Committee read a prepared statement to all in attendance. In his speech, he spoke of the positive attributes of the Chino Basin political structure that had enabled producers to mitigate conflict quite successfully in the first 18 years following adjudication. He asserted, however, that in recent months the Watermaster Board (CBMWD), and one member of the Board in particular, had been responsible for ‘major interference in this cooperative process.’” 28

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In this, Chino Basin parties were fortunate. As noted earlier, continuing jurisdiction over the Chino Basin had been assigned and reassigned to at least three judges from 1990 through 1995. Early in 1996, it was reassigned again, but this time to Judge J.  Michael Gunn who served as the judge for Chino Basin for the next 12 years. Judge Gunn came on the scene at a tumultuous time in the basin, but he remained for a long period and was able to invest in learning about the complicated issues, developing a relationship of respect and confidence with the parties and their counsel, and overseeing nothing less than a transformation of the management as well as the governance structure in Chino Basin.29 Of course, none of this was foreseeable at the beginning of 1996; to everyone in the basin, including Judge Gunn himself, he was simply the person who had been handed this case in which parties had readied themselves for battle. The Advisory Committee next formed an Ad Hoc Transition Committee, composed of some parties plus representatives of other stakeholders such as the overlying water districts. It met for the first time on January 31st with 15 committee members present. The members agreed unanimously to propose the initiation of an arbitration process for those who favored and opposed the appointment of the Advisory Committee as Watermaster to try to develop a resolution. What was the opposition? In early 1996, four kinds of arguments against the appointment of the Watermaster Advisory Committee as Watermaster were voiced, and some appeared to be gaining ground. One was to retain the status quo, which may have been convincing only to CBMWD itself and some of its closest allies, but they were still important participants in the basin. A variation on the status quo argument was that change was not needed immediately. Even if CBMWD had been unambiguously reappointed to another term as Watermaster back in 1993, that reappointment would have been due to expire in 1998. Since it was already 1996, parties could just make do with the current arrangement for a couple more years until it was time for the next regular decision about appointment or reappointment. A third argument was that the Advisory Committee was composed entirely of parties to the Judgment and excluded other important stakeholders in the basin such as the overlying municipal water districts (not only CBMWD but WMWD and Three Valleys). If a reconfiguration of the Watermaster board was indeed in order, it ought to be reconfigured in such a way as to include stakeholders in addition to the parties. A fourth argument was for “checks and balances,” i.e., that the combination of a policymaking Advisory Committee and a separate Board for executing basin management, entering into contracts, keeping the books, etc., was preferable to a structure where the Advisory Committee controlled everything. By March 1996, before any arbitration process got under way, some parties that had voted in favor of the Advisory Committee becoming Watermaster had reconsidered and began to declare themselves opposed to the idea. The Agricultural Pool  Readers of the many hearing transcripts from the period 1996 through 2008 would gratefully add that Judge Gunn displayed a sense of humor on the bench, a willingness to let attorneys have enough rein to make long and sometimes complicated arguments, but the ability to differentiate between serious arguments and puffery.

29

8.8 “Chinotown”

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Committee had announced its opposition, joined by Monte Vista Water District from the Appropriative Pool. Those changes called into question whether the 71.64% majority vote on the Advisory Committee was still valid. The motion to appoint the Advisory Committee was taken off the Court’s calendar, and Ad Hoc Transition Committee meetings continued.30 Out of these meetings emerged an alternative proposal – a nine-member watermaster board along the lines of the Main San Gabriel Basin and Raymond Basin examples. The seats on the board could be distributed among the parties and other stakeholders. For example, there could be a seat for each of the three overlying municipal water districts, and perhaps a seat for the State of California (which the Judgment had placed in the Overlying (Agricultural) Pool but often did not agree with the agricultural producers). In April 1996, the Advisory Committee voted  – this time with a 96.56% majority – to approve a proposal for a nine-member watermaster board and directed its counsel to present that as a motion to the Court. Judge Gunn set a hearing on that motion to be held on June 18, 1996. The conflict continued to escalate in other ways. In January, the Advisory Committee had declared that Fred Fudacz and the firm of Nossaman, Guthner, Knox and Elliott were not just the committee’s counsel but Watermaster General Counsel. From the Advisory Committee’s viewpoint, CBMWD’s counsel  – now Jean Cihigoyenetche – was just the district’s lawyer, not the Watermaster’s lawyer. (This argument was undergirded by the ambiguity over whether CBMWD actually was the Watermaster anymore.) More pointedly and even more disruptively, on March 7, 1996, the Watermaster Advisory Committee voted to rent office space for the Watermaster staff (i.e., for Chief of Watermaster Services Traci Stewart and her colleagues), and directed them to move out of the CBMWD offices; the CBMWD board approved the move on April 3rd.31 At the end of April, Traci Stewart sent a letter to the CBMWD board announcing that the Advisory Committee had decided to terminate the administrative services agreement by which Watermaster staff had been CBMWD employees paid for with assessments on the Watermaster parties. In July 1996, the Advisory Committee appointed a separate Interim Controller to join the Watermaster staff; until then, the chief financial officer of CBMWD had always been ex officio treasurer for the Watermaster. In September, the Watermaster staff procured its own insurance. Step by step and month by month, outside the court as well as in court, the Advisory Committee was pulling the Watermaster staff and operations away from CBMWD.

30  Chino Basin Watermaster, Nineteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1995–96. 31  Chino Basin Watermaster, Nineteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1995–96. Also, Rice interview, April 9, 1997, and Stewart interview, January 5, 1998. The CBMWD’s acquiescence to the move-out appears surprising, but by this time the general atmosphere was so charged that the staff were subjected to accusations of taking sides, and from CBMWD’s perspective might be colluding with the Advisory Committee to support CBMWD’s ouster.

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The Advisory Committee’s April 1996 motion to replace CBMWD, not with the Advisory Committee itself but with a separate multi-member body that could include entities not represented on the Advisory Committee, clearly had support and momentum. Action would have to be taken quickly if it were to be forestalled. Before the scheduled June 18th hearing on that motion was held, CBMWD presented its own motion to the Court on June 3rd. That motion requested Judge Gunn to appoint CBMWD as Interim Watermaster, to make that appointment retrospective to cover the period since 1993 (i.e., to issue what is called a nunc pro tunc – “now for then” – order), and to disqualify Mr. Fudacz as Watermaster Counsel on the grounds that there was a conflict of interest in serving both the Watermaster and the Advisory Committee. Judge Gunn agreed to hear CBMWD’s motion at the June 18, 1996 hearing also.

8.9  “A Very Unfortunate Occurrence” In the institutional history of Chino Basin governance, the June 18, 1996 hearing rightly takes its place alongside the March 1, 1989 hearing described in Chap. 7. Fundamental questions were raised and debated – the interpretation of provisions of the 1978 Judgment, the roles of the Watermaster Advisory Committee and the Watermaster board and staff – as well as the more immediate and specific issues of the nine-member Watermaster proposal and the disqualification of Mr. Fudacz as Watermaster Counsel. Judge Gunn, who was still new to the case but had clearly been working to get acquainted with it, actively questioned the attorneys during their respective arguments. The transcript runs to more than 100 pages. On behalf of CBMWD, Mr. Cihigoyenetche argued that for purposes of the Judgment and any motions or proceedings connected with it, either Mr. Fudacz was trying to represent two parties on opposite sides of the controversy, or in the alternative, he was effectively an attorney without a client. The first argument was that CBMWD had received legal advice from Mr. Fudacz that was detrimental to its interests because he was simultaneously representing the Advisory Committee which was trying to oust CBMWD as Watermaster and take that role for itself.32 Cihigoyenetche’s alternative argument was that the Advisory Committee Mr. Fudacz represented might be composed of parties to the Judgment, but the Advisory Committee itself is not a party to the Judgment, and since he was not representing CBMWD or any other party to the Judgment, he had no basis for participating. Mr. Fudacz responded that the disqualification motion was “simply a tactic” intended to prevent the majority of parties to the Judgment from bringing their motion to appoint a new Watermaster to the Court. He further argued that he represented “the Office of Watermaster” which was created by the Judgment and the

 Reporter’s Transcript of Oral Proceedings re: Motion to Continue Hearing Date, Motion to Disqualify Counsel, and Motion to Appoint Nine-Member Panel, June 18, 1996, at p. 6.

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Chief of Watermaster Services – Ms. Stewart – who was trying to administer the Judgment and carry out the management of the basin in accord with it.33 From there, Mr. Fudacz proceeded to the issue of the Advisory Committee’s authority under the Judgment to recommend to the Court who shall be appointed to serve as Watermaster, and the Court’s obligation under the Judgment to make that appointment. He emphasized the “near consensus”  – the 96.56% vote of the Advisory Committee representing parties from all three pools. Mr. Cihigoyenetche and attorneys for Monte Vista Water District (Arthur Kidman) and the City of Chino (Jimmy Guitierrez) countered that support for that proposal had eroded since April and was now probably closer to two-thirds or three-quarters of the parties in favor. Judge Gunn pointed out that the percentage of the majority did not appear to matter: under the terms of the Judgment, the Advisory Committee’s recommendation regarding the appointment or reappointment of the Watermaster was to be followed by the Court whether the committee had made the recommendation by 51% or 100% or anything in between. To him, it seemed that the only consideration that should stay his hand in making the appointment was whether there was, as the Judgment stated, any “compelling reason” not to follow the guidance of the Advisory Committee.34 On that matter, Mr. Cihigoyenetche proceeded to the issue of conflicts of interest and, implicitly at least, an argument for checks and balances in the basin governance structure. If members of the Advisory Committee could either also serve on the multi-member Watermaster board or could appoint the representatives on the board, the producers would be effectively running the basin. The idea of members serving on both the Watermaster Board and the Advisory Committee should, Mr. Cihigoyenetche stressed, be avoided “at all costs,” but even the idea of a Watermaster Board that was appointed by and beholden to the parties represented on the Advisory Committee was undesirable. After all, he pointed out, the parties to the Judgment were the producers who had overdrafted the basin in the first place. “The problem,” he stated, “is they’re policing themselves.”35 Giving them control over the basin was no guarantee that they would maintain it effectively, and even raised the risk that they would return to depleting it. As for the consensus Mr. Fudacz referred to, Cihigoyenetche retorted, “of course, they came out with a 90 percent vote, they’re voting themselves into power.”36 Mr. Kidman for Monte Vista Water District and Mr. Guitierrez for the City of Chino subsequently elaborated on this conflict of interest/checks-and-balances argument. Having heard the arguments against the nine-member board proposal, Judge Gunn then raised the question of why things had even reached this point after 18 years of operation under the Judgment. To no one in particular and with a touch of exasperation, he asked, “What is the real problem driving these people in this

 Reporter’s Transcript, June 18, 1996, at p. 12.  Reporter’s Transcript, June 18, 1996, at p. 19. 35  Reporter’s Trancript, June 18, 1996, at pp. 21–22. 36  Reporter’s Transcript, June 18, 1996, at p. 23. 33 34

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case? Nobody has been really forthright to the Court in their moving papers as to what the real controversy is requiring the people to come to court and request a dramatic change in the Watermaster at this late date.”37 He had a point, of course. The parties’ moving papers had not expressed that essence of the conflict, of what was driving them, in Judge Gunn’s phrase, because those considerations of representation, fairness, and power and trust and perception are not easily reduced to legal arguments. The core issue, the essence of the disagreement, was not legal – it was political. It was about whom the parties trusted and wanted in charge, or did not trust and no longer wanted in charge. It was about control, too: who would be able to push management plans and actions forward as they saw it, who would be able to block them, and what kinds of decision making they wanted to have now and in the future. These are arguments about governance, which are often both critically important and maddeningly imprecise. Over the next several hours, four attorneys for parties supporting the motion for appointment of the nine-member board slowly unpacked and carefully presented what they thought had gone wrong. Fudacz went first. “[T]his thing,” he said, “has been brewing for years now, the concerns about Chino Basin [Municipal Water District].”38 The fact it isn’t really neutral has never been pursued, but has been festering since 1992, if not earlier. In fact, there was a suggestion by Chino Basin [Municipal Water District] that somehow they should be accorded 18,000 acre-feet of water to support an operation that they have in the basin [i.e., the desalters]. 18,000 acre-feet of water that might otherwise go to other parties to this Judgment. 18,000 acre-feet of water has to be worth 40 million dollars. That is why we are here today.39

Any parties who might claim not to understand this could not be taken seriously, Fudacz implied: “They know what’s going on. I mean, clearly, they read the papers. The thing has been brewing since January at a high visibility level.” The Advisory Committee had voted twice in the first four months of 1996 to replace the Watermaster. The Watermaster staff had moved out of the CBMWD offices and set up a separate computer system, and other aspects of the transition were in the works. It needed to be resolved, he added: We can argue about who is right and who is wrong, but what it does indicate is that there is an unhealthy adversarial [sic] between Chino Basin Municipal Water District and Watermaster and its staff; and things aren’t getting done that should be getting done because of that.40

 Reporter’s Transcript, June 18, 1996, at pp. 32–33.  Reporter’s Transcript, June 18, 1996, at p.  50. In their arguments before the Court, attorneys repeatedly referred to Chino Basin Municipal Water District as simply “Chino Basin.” The full name is included here in brackets to try to avoid any confusion that the attorneys were speaking of the basin itself. 39  Reporter’s Transcript, June 18, 1996, at pp. 50–51. 40  Reporter’s Transcript, June 18, 1996, at p. 64. 37 38

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We have got to get beyond that to address the real issues like getting a desalter agreement to clean up the water coming in, dealing with storage limits in this basin. This basin is a huge resource. It should be utilized for the benefit of all the people in this basin in terms of the storage capacity that it has.41 I would suggest that this was a very unfortunate occurrence. I don’t exactly know what happened. I wasn’t here at the time. I don’t know what happened to cause this failure. Essentially, what we have had is a de facto Watermaster. A Watermaster acting at the sufferance of the committee.42

Representing the State of California in its role as groundwater producer in the Agricultural Pool and a party to the Judgment, Marilyn Levin underscored Fudacz’s point about the difficulty of the current situation and the need for a swift resolution rather than ongoing uncertainty and attempts at negotiation. She told the judge, “This has been brewing for more than four months. It has been brewing for years.”43 She added that nothing would be gained by ordering the parties to keep negotiating “except total chaos in the Chino Basin. I am supporting Mr. Fudacz’s motion that the nine-member board be appointed today because of the possible chaos in the Chino Basin.”44 Robert Dougherty, attorney for the City of Ontario, spoke next. His was an especially important voice in this context. For one thing, Dougherty had been involved in Chino Basin since the original judgment was negotiated in the 1970s, twenty years earlier. Also, in the 1988–89 moving parties’ lawsuit, Dougherty and Ontario had sided with CBMWD on the issues of storage and the agreements with Metropolitan Water District. Now, in June 1996, he appeared in support of removing CBMWD as Watermaster. Dougherty first dismissed one aspect of the “checks and balances” argument: the idea that CBMWD served as Watermaster in order to provide some sort of counterpoise relative to the parties. Echoing earlier comments about the respective roles of the Watermaster Advisory Committee as a policymaking body versus the Watermaster, Dougherty recalled for the judge: Chino Basin Municipal Water District was picked for several reasons, none of which had any relation to do with this check or balance concept that is now being discussed before the Court…. The Watermaster was supposed to be the body that implemented the day-to-day actions. And we picked Chino Basin [Municipal Water District] for the reason they were there; they had the facilities; they had the staff; they had the attorney who put the whole thing together, more or less, Don Stark.45

 Reporter’s Transcript, June 18, 1996, at p. 66.  Reporter’s Transcript, June 18, 1996, at p. 78. 43  Reporter’s Transcript, June 18, 1996, at p. 76. 44  Reporter’s Transcript, June 18, 1996, at p. 76. 45  Reporter’s Transcript, June 18, 1996, at pp. 80–81. 41 42

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Dougherty then turned to Judge Gunn’s question about what had gone wrong, adding further detail to what Fudacz had stated. When CBMWD was chosen to be Watermaster in the 1970s, he recalled: [T]hey did not have their own agenda. They were simply there to handle it for the best interests of all the producers. Eighteen years later we find that we have a change of circumstances, and that change being that, at least in the perception of some of the producers, Chino Basin Municipal Water District has developed an agenda of its own. Whether that perception is correct or incorrect, we have got at least 96% of the producers as represented by the Advisory Committee saying, we no longer wish to have Chino Basin Municipal Water District as our Watermaster.46

Tom McPeters spoke fourth. He too had been representing parties in Chino Basin since the 1970s. In this hearing, he represented two water companies, Fontana Union Water Company and Monte Vista Irrigation Company. His account of the breakdown and current situation reinforced that of his colleagues: This is not something that has been lightly taken by any of the parties, you know, to this proceeding. The issues have been brewing for a long time. The only changed circumstance, as I can see it, is the relationship between the present Watermaster and the Advisory Committee. That has undergone a series of tensions in recent years.47

McPeters devoted more of his time to supporting the motion for the appointment of the nine-member board and rejecting the checks-and-balances argument. He reiterated that the complex, multi-entity governance structure in Chino Basin, with three pool committees, an Advisory Committee, a Watermaster Board, plus the continuing jurisdiction of the court contained plenty of checks and balances, regardless of how the Watermaster Board was composed. “I have never seen anything with so many checks and balances. Every provision is a compromise and was hashed over by these people,” he said.48 Picking up a comment Judge Gunn had made, that no management consultant would have recommended a governance structure like this, McPeters continued: “It’s complex and maybe the Wharton School people would not recommend it, but the Wharton School people would never have been able to get this judgment.”49 He concluded: If it weren’t for the good statesmanship of people like Don Stark, who had a tremendous influence on this whole process – and there were others who understood and had been fighting these water wars, you know, for a long time. They understood the process. This was not the first Judgment they participated in…. They were smart people. They were skilled people. And they did a good job. This is one of the better judgments. They took the time to do what it took to get it. It works well. It should continue to work well.50

 Reporter’s Transcript, June 18, 1996, at p. 81.  Reporter’s Transcript, June 18, 1996, at p. 86. 48  Reporter’s Transcript, June 18, 1996, at p. 87. 49  Reporter’s Transcript, June 18, 1996, at p. 88. 50  Reporter’s Transcript, June 18, 1996, at p. 89. 46 47

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Judge Gunn began to draw the hearing toward a conclusion. He checked with Mr. Fudacz about how long Traci Stewart had been serving as Chief of Watermaster Services, to make sure she had not been responsible for dropping the ball back in 1993 on the Watermaster reappointment. Fudacz confirmed that she had not. Referring to that incident, Gunn said, “somebody was asleep at the switch, obviously.”51 Fudacz assured the judge that most of the parties had confidence in Ms. Stewart to continue to handle the Watermaster administration functions, despite the tensions between CBMWD and the Watermaster staff. Judge Gunn told the parties that he was inclined to approve a change of Watermaster but was not yet ready to approve the motion for the appointment of the proposed nine-member board. He made clear that he was skeptical of the broad checks and balances argument, but he did wonder about an aspect of the conflict of interest issue: whether the groundwater producers represented on the pool committees, the Advisory Committee, and the Watermaster board would be certain to protect the best interests of the basin as a whole. Perhaps that was a compelling reason, he said. He wanted more time to consider it. The judge directed everyone to try to continue for the time being in the best manner they could. He left Mr. Fudacz in place as Watermaster Counsel. He appointed CBMWD as Interim Watermaster, but repeatedly warned that this was not a new 5-year appointment and could be terminated as quickly as the next hearing. CBMWD should cooperate with the Watermaster staff, make sure any unpaid bills from the last six months were taken care of, and enter into an interim services agreement to cover who would do what in the meantime. Mr. Cihigoyenetche assured Judge Gunn that CBMWD would do so. The Advisory Committee should continue to “meet and confer” with CBMWD and other interested parties to try to work out agreement about the Watermaster transition and the composition of the board. Even as he gave this direction, however, Judge Gunn expressed his doubts about whether it would work. “I don’t think you guys can agree on anything,” he quipped.52 He ordered them to come back in three months and report on progress, and to hold their first “meet and confer” by the end of July in order to have time for additional sessions if needed before they returned to court in September.

8.10  Meet, Confer, Delay, Repeat There were meetings. There had been several before the June 18th hearing: the Watermaster Annual Report for 1995–96 reported that eight meetings on the topic of the change of Watermaster had been held by June 1996. After the June 18th hearing, as directed by Judge Gunn, the parties held a “meet and confer” session in late July and another in late August.

51 52

 Reporter’s Transcript, June 18, 1996, at p. 101.  Reporter’s Transcript, June 18, 1996, at p. 102.

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A revised proposal for the composition of the Watermaster board emerged – a 3-member board appointed by the three overlying municipal water districts. This alternative had some attractive features. First, it appeared to address the concern about the groundwater producers controlling the new board and virtually all decision making. The municipal water districts were deeply involved in Chino Basin but they weren’t pumpers. Second, it gave representation in the governance structure to WMWD and Three Valleys – CBMWD obviously had been represented in the original Chino Basin governance structure, but the other two districts had not. Third, even though it was quite different from the Main San Gabriel Basin and Raymond Basin models, it resembled two other watermaster structures in the area. Parties in Chino Basin were familiar with the Santa Ana River Watermaster which, as mentioned in Chap. 5, is a 5-member board composed of representatives selected from water districts in the upper and lower areas of the Santa Ana River Watershed.53 And in the neighboring San Gabriel River Watershed, the 3-member San Gabriel River Watermaster was composed of representatives appointed by upper and lower area districts. Fourth and finally, it was hoped by the Advisory Committee that a board on which CBMWD would hold 1 of 3 seats would be more palatable than the board structure on which CBMWD would hold 1 of 9. When the parties returned to Judge Gunn’s courtroom on September 18, 1996, that was where things stood. They were in negotiations over a proposal for a 3-­member board, and a motion had been filed with the Court to make such an appointment. WMWD and Three Valleys had agreed to participate in such a structure. On behalf of CBMWD, Mr. Cihigoyenetche reported that their board of directors would take up the proposal at their October meeting. Judge Gunn agreed to continue the motion to November 20th. However, CBMWD then voted not to participate in the 3-member board, and the motion was taken off Judge Gunn’s calendar. According to the 1996–97 Watermaster annual report, four additional meetings on a possible Watermaster structure were held in late 1996 and early 1997. The Advisory Committee pushed the 3-member board idea again, this time with the suggestion that if CBMWD did not want one of the seats, it could go to the State of California which was a member of the Agricultural Pool and whose lands in the basin were in the CBMWD service area. CBMWD rejected that as well – it did not want to be on the 3-member board and it did not want to not be on the 3-member board. On January 30, 1997, the Advisory Committee publicly gave up on making new alternative proposals for the size and composition of the Watermaster Board. The Advisory Committee voted, with a majority of 67.99%, to approve a modified version of its proposal for a nine-member Watermaster board and to present that motion to the Court.54 Already bad, things got worse. In late 1996, with the Watermaster staff having their own office, computing system, and controller, individuals at CBMWD started  According to Green (1997: 13), a 5-member watermaster board for Chino Basin was discussed also. 54  Chino Basin Watermaster, Twentieth Annual Report of the Chino Basin Watermaster, Fiscal Year 1996–1997. 53

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raising accusations of financial impropriety and even embezzlement. CBMWD directors proposed that an external audit be performed. At its January 30, 1997 meeting, the Watermaster Advisory Committee voted against such an audit being conducted, and did so with a majority greater than 80% – supposedly making the committee’s direction mandatory. The CBMWD board voted to proceed with the audit anyway.55 The issue of legal counsel resurfaced too. CBMWD still wanted to remove Mr. Fudacz and the Nossaman firm as Watermaster Counsel. The Advisory Committee voted, again by more than 80%, that no change in counsel be made. The CBMWD board voted to do it anyway, terminating the contract with Nossaman on February 27, 1997. CBMWD directed its attorney, Mr. Cihigoyenetche, to file a new motion to with the Court to disqualify Fudacz and the Nossaman firm was Watermaster Counsel, which Cihigoyenetche did on March 6th.

8.11  Judge Gunn Takes Charge On March 3 and 11, 1997, Judge Gunn held two more hearings during which parties debated the disqualification and audit issues. The tensions and conflicts were on full display, and a comment from Judge Gunn showed that he was well aware of them. Referring to the audit issue, the judge first acknowledged that the request for the audit might be legitimate. But, he continued, “Then again, it is like nuts to the Advisory Committee, by gosh, we’re going to do this audit no matter what they tell us. And so maybe that’s circumstantial evidence that there is a breakdown in the machinery here.”56 To several participants in Chino Basin, and especially to the Watermaster staff, it indeed felt like a breakdown. Staff members said at the time that their personal integrity was being challenged and their professional reputations endangered. They reported receiving threats of retaliation or termination.57 The difficult position of the Watermaster staff, working in the midst of this power struggle between CBMWD and the Advisory Committee, was evident to Judge Gunn, who said at the March 11th hearing: There are presumably people that have worked a number of years in a very insecure situation right now…. [T]hose are real people, real live people with families who are dependent on their incomes. Whatever the resolution, that will weigh heavily…. I am not interested in ruining people’s lives.58

 Green (1997: 73). Also, Reporter’s Transcript of Oral Proceedings, March 11, 1997.  Reporter’s Transcript of Oral Proceedings, March 11, 1997, at p. 6. 57  Declaration of Mary Staula, March 24, 1997, Declaration of Michelle Lauffer, March 24, 1997, and Declaration of Traci Stewart, March 25, 1997, as reported in Green (1997: 51–55). 58  Reporter’s Transcript, March 11, 1997, at p. 19. 55 56

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At that hearing, Marilyn Levin, attorney for the State of California, raised the possibility that Judge Gunn could remove CBMWD as Interim Watermaster and appoint either Anne Schneider or former Judge Turner as Interim Watermaster instead.59 (Later, the Advisory Committee also endorsed the idea of Judge Turner’s appointment.)60 Judge Gunn replied that he was indeed considering replacing CBMWD as Interim Watermaster but was concerned about what that might mean for the staff, who were technically still CBMWD employees. Something had to give, it seemed. In a statement to the Court on March 24, 1997, Watermaster Advisory Committee’s new attorney James Markman and Ontario’s attorney Robert Dougherty expressed their frustration over the continued negotiations about the size and composition of a new Watermaster board: The parties who are opposed to the CBMWD Board and its allies being replaced as Watermaster have kept the CBMWD Board in power by attacking with great vigor, and greater vitriol, every proposal which has been made until now for a new Watermaster. So far, the strategy… has worked like a charm. For the last 14 months the parties have discussed, debated, analyzed, dissected, resected, and more, each and every proposal for a new Watermaster. So far, every proposal has met with opposition from one or more of this vocal minority.61

At the conclusion of another hearing, on April 29, 1997, Judge Gunn issued rulings on several matters.62 • He directed CBMWD and the Advisory Committee to negotiate terms with the California Department of Water Resources to become the Interim Watermaster for Chino Basin to replace CBMWD in that role. • On the motion for appointment of a nine-member Watermaster Board, he appointed Anne Schneider to serve as Special Referee to review the issue and make a recommendation to him. • He granted CBMWD’s motion to disqualify Mr. Fudacz and the Nossaman firm as Watermaster Counsel. • On the expanded audit issue, he postponed the audit for the time being, and directed that if DWR had not become Interim Watermaster by July first, the expanded audit should proceed. Judge Gunn’s choice of the Department of Water Resources (DWR) as Interim Watermaster involved several factors. First, it was clearly his own choice, and thus

 Reporter’s Transcript, March 11, 1997, at p. 18. Anne J. Schneider, a well known and highly respected water rights attorney based in Sacramento, had served as a Special Referee in Chino Basin in 1995 concerning a question of whether Kaiser Industries could sell its real property to California Steel Industries while still reserving a portion of the water rights. Schneider was also the author of one of the most influential reports ever published in California groundwater law – her 1978 report to the Governor’s Commission to Review California Water Rights Law. 60  Rice interview, April 9, 1997. 61  Quoted in Green (1997: 74). 62  Chino Basin Watermaster, Twentieth Annual Report of the Chino Basin Watermaster, Fiscal Year 1996–97. Ruling and Order of Special Reference, April 29, 1997. 59

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he was not acceding to either side’s preferences. Second, DWR was a reasonable choice – it served as the court-appointed Watermaster in the Central Basin and West Basin adjudications in neighboring Los Angeles County and had been the original Watermaster in Raymond Basin before that basin shifted to a nine-member board, so there was no question DWR was capable of serving in the role. However, instead of simply appointing DWR outright, Judge Gunn had directed CBMWD and the Advisory Committee to negotiate with the DWR about becoming Interim Watermaster. This choice reflected two time-sensitive and important considerations. One was that there had not been time for Judge Gunn himself to secure agreement from DWR for the appointment, but he apparently felt he needed to make a decision quickly that would signal CBMWD’s status quickly. The other was that Judge Gunn was concerned about the fate of the Watermaster staff, and he explicitly directed CBMWD and the Advisory Committee to discuss with DWR whether DWR might be willing to keep the current staff members either as employees of its own or as contractors. Negotiations with DWR went slowly, and DWR was not appointed by July 1, 1997.63 CBMWD remained technically the Interim Watermaster but everyone, including CBMWD, understood that its days in that role were numbered. Judge Gunn’s April 29th ruling had changed the strategic situation for CBMWD and everyone else. From that point forward, it was no longer a question of whether a new Watermaster would be appointed or CBMWD would continue; it was a question of whether a new Watermaster would be appointed or DWR would become the Interim Watermaster. Through the remainder of 1997 and into early 1998, the level and intensity of conflict gradually subsided. Having accepted the appointment as Special Referee, Anne Schneider began communication with the parties about the proposal for a new Watermaster board. She held a day-long hearing with representatives of the parties on October 21, 1997.64 She focused on the questions that had concerned Judge Gunn from the beginning – namely, would the new Watermaster be sufficiently independent of the Advisory Committee, and would it act in the best interests of the basin generally as distinct from the interests of the producers. At the October hearing, she revealed that she was considering a recommendation that the Court appoint the nine-member board as Interim Watermaster and give it one or more significant tasks to complete to demonstrate whether and how effectively it could work. She returned to the subject of an optimum basin management program (OBMP) – the issue that had been brought up nearly 10 years earlier in the moving parties’ lawsuit in 1988. Judge Turner’s 1989 ruling had directed the Watermaster to develop an OBMP. Schneider pressed for information about what had been done, and specifically whether there was any document or set of documents that could properly be identified as constituting the OBMP, or even a plan for one. The various 63  The external audit proceeded, with an auditing firm selected in June and the audit itself performed in December. Chino Basin Watermaster, Twentieth Annual Report of the Chino Basin Watermaster, Fiscal Year 1996–97. No findings of theft or embezzlement resulted. 64  Reporter’s Transcript of Oral Proceedings, October 21, 1997.

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representatives at the hearing responded that there was the Chino Basin Water Resources Management Study, initiated in 1990 and completed in 1995, and it had identified alternative scenarios for managing the basin. However, none of those scenarios had been developed further into something one could call a management plan or program. That fact developed into Schneider’s focus – she might recommend that Judge Gunn give the nine-member board an interim appointment and task them with producing, as she put it, in a “fairly short but reasonable amount of time a program or plan as to how it will proceed to carry out” the long-awaited OBMP.65 She inquired further about the 1995 study and the prospects for turning it into an OBMP. Traci Stewart and Mark Wildermuth offered to provide her with the study and a presentation or briefing about its findings and the management possibilities. At that point Schneider indicated that she might want the assistance of an independent technical expert to advise her on those more detailed aspects of the basin’s characteristics, problems, and possibilities. With six months having passed since Judge Gunn’s April 29th order, Schneider inquired about the negotiations with DWR. Mr. Markman, representing the Advisory Committee, replied that he and Mr. Cihigoyenetche on behalf of CBMWD had been trying to work out an agreement with DWR but were still “in the middle of that process.”66 Markman said he could not be sure that they would have an agreement in place before a decision had been reached on the appointment of the nine-­ member board. Schneider moved quickly after the October 21st hearing. She issued her Special Referee’s Report and Recommendations on December 12, 1997. Judge Gunn issued an Order to Show Cause, that is, a direction to the parties to come forward with any arguments as to why he should not accept the Special Referee’s Report and Recommendations, and scheduled a hearing on that order for February 19, 1998.67 Schneider’s recommendations essentially matched what she had discussed at the October hearing. • She recommended that Judge Gunn appoint the nine-member Watermaster board with the structure and composition recommended in the Advisory Committee’s January 1997 motion: three seats for representatives from the Appropriative Pool, two seats for representatives from the Agricultural Pool, one seat for a representative from the Non-Agricultural Pool, and one seat each for representatives from Chino Basin Municipal Water District, Three Valleys Municipal Water District, and Western Municipal Water District. • She recommended that the initial appointment of this board be as Interim Watermaster for a period of approximately two years, with the condition and understanding that the nine-member board would not be given a subsequent appointment as Watermaster for a full-five year term unless the board succeeded in producing for the Court an acceptable OBMP.  Reporter’s Transcript, October 21, 1997, at p. 13.  Reporter’s Transcript, October 21, 1997, at p. 14. 67  Stewart interview, January 5, 1998. 65 66

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• She recommended that the Judge keep DWR as a possible Watermaster if the nine-member board failed to function effectively during the interim period. • She offered to stay on as Special Referee during the interim period and to review and make recommendations to the Court about the effectiveness of the new Watermaster board and the soundness of the OBMP development, but would like to have the assistance of a technical expert if the Judge wanted her to continue. At the conclusion of the show-cause hearing on February 19, 1998, Judge Gunn issued his ruling, adopting the Special Referee’s recommendations. But he did much more than that. His 14-page ruling was an eloquent combination of constitutional interpretation (i.e., of the 1978 Judgment as Chino Basin’s “constitution”), directions, admonitions, and encouragement. He provided his interpretation of how the Watermaster structure is supposed to work, and how the Watermaster board relates to the Advisory Committee on the one hand and to the Court on the other. While the adversarial relationship – even animosity – between CBMWD and the Advisory Committee was neither necessary nor desirable, the Watermaster board also was not merely to carry out the preferences of the Advisory Committee. Some independence between the Advisory Committee and the Watermaster Board was important. He explained: The Watermaster operates on the one hand as an administrator and on the other hand as an extension of the court. When functioning as an extension of the court the Watermaster acts as a steward of the groundwater resources in the Chino Basin. The Watermaster must protect the interests of the public as well as the interests of the producers. Consequently, the Watermaster may find it necessary to take positions adverse to the Advisory Committee.68

He appreciated that the proposed nine-member board would include non-producer representatives (the three municipal water districts), and that it would make decisions on a one-member, one-vote basis rather than the weighted or volume-vote structure the Advisory Committee uses. To reinforce some separation between the Watermaster Board and the Advisory Committee, he accepted the proposals (a) to have staggered terms of board members (after the initial interim period), (b) precluding individuals from serving on the Watermaster Board and the Advisory Committee simultaneously, and (c) that appointments belonged to the Pool Committees rather than individual producers – for example, in the event of a vacancy on one of the six producer seats, the replacement would be selected by that Pool Committee and not necessarily from the specific party whose representative had filled the seat previously. On the nature and conditions of the interim appointment of the nine-member board, Judge Gunn made these provisions. First, the board’s interim appointment would begin on March 1, 1998 and continue until June 30, 2000 – just over two years. Second, depending on the board’s performance as Interim Watermaster, a full five-year appointment as Watermaster could commence after that. Third, a hearing should be held before the Court no later than October 28, 1999, to gather the parties’ opinions on whether the interim board should be appointed to a full term. Fourth, 68

 Ruling, February 19, 1998, at pp. 2–3.

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the Court reserved the option of appointing DWR as Watermaster following the interim period if the nine-member board was ineffective or unsuccessful. Judge Gunn took care to state more than once in his ruling that he did not want, and was not planning, to replace the board with DWR after the interim period. At one point, he wrote, “The court is very aware that the parties hereto desire local control of the Watermaster function, and the court has no desire to transfer control from the nine-member board provided that Watermaster professionally perform its responsibilities under the Judgment.”69 Nevertheless, he needed to see results, with deadlines met and outputs produced. “None of us wants the past to be prologue,” he admonished.70 Those deadlines and expected outputs were strenuous. Judge Gunn was setting the new Watermaster on a vigorous march: • Board representatives to be named by March 15th. • A list of the names of all Watermaster staff and their respective positions to be filed with the Court no later than March 15th. • Each party to provide recommendations to the Watermaster board about the scope and level of detail of the OBMP by June 1st. • Watermaster to file its recommendation for the scope and level of detail of the OBMP with the Court by June 30th. • Special Referee Schneider, with the assistance of technical expert Joe Scalmanini,71 to provide the Court with their review of the sufficiency of the OBMP scope and level of detail by July 31st. • Watermaster to make quarterly progress reports to the court on the development of the OBMP. • The OBMP to be submitted to the Advisory Committee and then to the Court no later than September 30, 1999. • A hearing to be held on October 28, 1999 on whether to approve the OBMP and order its implementation, and to receive parties’ input regarding whether the Watermaster board should be appointed for a five-year term beginning July 1, 2000. There were some additional noteworthy provisions in the ruling. CBMWD was ordered to take all steps and make any provisions necessary for an orderly transition of staff, records, etc., to the new Watermaster board. The new board was directed to retain the staff as employees provided they were performing well, but no employee should assume this meant any special judicially-conferred job protection; furthermore, if the new board failed and DWR ended up as Watermaster, the judge was making no commitments on DWR’s behalf about whom it would or would not employ. And, in a sign of the times, he ordered the Watermaster to create “a

 Ruling, February 19, 1998, at p. 7–8.  Ibid., p. 12. 71  Mr. Scalmanini, founder of the engineering firm Luhdorff & Scalmanini, was as well known and highly regarded among engineers as Ms. Schneider was among attorneys. 69 70

Reference

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so-called ‘web site’… and keep it up to date with notice of meetings, agenda items, minutes of meetings,” etc.72 At the close of his ruling, Judge Gunn thanked the attorneys for their professionalism throughout the proceedings, and especially for the diminished level of vitriol and the accelerated progress recently. He then wished all the parties well, with these words of encouragement: The Special Referee alluded to ‘the tragedy of the commons’…. [I]t is hoped that the appointment of the new Nine-member Board as Watermaster will result in the triumph of the commons. The people of this area deserve it. Good luck.73

The names of the new board members were submitted to Judge Gunn four days later, and the march was on.

Reference Green, M. H. (1997). Analyzing conflict: A case study of groundwater government in Chino Basin. Senior Thesis, Pomona College.

72 73

 Ruling, February 19, 1998, at p. 10.  Ruling, February 19, 1998, at p. 14.

Chapter 9

An Explicitly Adaptive Management Approach: The Optimum Basin Management Program and a Peace Agreement Abstract  Although the controversy of the 1990s focused on the identity and composition of the watermaster, the broader issues were about the overall approach to managing the basin. From 1998 through 2000, the parties and other stakeholders in Chino Basin forged a new management program – the Optimum Basin Management Program (OBMP) – and negotiated a “Peace Agreement” that provided a framework for how they would implement it. It was the launch of an adaptive groundwater management approach in Chino Basin. The OBMP and Peace Agreement embodied a more active approach to managing water levels, basin replenishment, the reuse of treated wastewater, the improvement of water quality, and redressing land subsidence. It would require an intensive data gathering and analysis effort, actions on multiple issues – some simultaneously, some sequentially – and continual monitoring, feedback, and adjustment. Keywords  California · Chino Basin · Groundwater · Basin governance · Optimum Basin Management Program (OBMP) · Chino Basin Peace Agreement · Groundwater monitoring · Regional Water Quality Control Board · Dairies · Inland Empire Utilities Agency

A striking, sometimes astonishing characteristic of Chino Basin governance and management is how much work goes on even while they are fighting. The intensity and significance of the 3-year Watermaster battle certainly interfered at times with progress on basin management activities. What is remarkable, however, is how much was done even during the turmoil. In the process a new approach to managing the basin emerged. It was encapsulated in the Optimum Basin Management Program (OBMP) submitted to Judge Gunn in 2000, constructed from components that were developed in the midst of the conflict during the mid-1990s. While the controversy had focused on the identity and composition of the Watermaster, the broader issues were about the overall approach to managing the basin. The OBMP developed after Judge Gunn’s ruling in February 1998 envisioned a much more active management agenda, addressing water levels, basin

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_9

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replenishment, the reuse of treated wastewater, the improvement of water quality, and redressing the land subsidence problem. It would depend upon an intensive data gathering and analysis effort, would require actions to address multiple issues  – some simultaneously, some sequentially – and continual monitoring, feedback, and adjustment. It was, in other words, the dawn of adaptive groundwater management in Chino Basin. At the close of this period, an intensive round of negotiations resulted in “the Peace Agreement,” which was signed by all of the parties and presented to the court for its approval. The Peace Agreement included provisions for financing and implementing the OBMP and, most important, a pledge by all parties to make it work.

9.1  Moving Forward Amid the Turbulence At her October 21, 1997 hearing mentioned in Chap. 8, Special Referee Anne Schneider asked what had become of the 1995 report that concluded the Chino Basin Water Resources Management Study. Watermaster’s engineering consultant Mark Wildermuth explained that the 1995 report included alternative scenarios for managing the basin to deal with water quality, supply, replenishment, storage, subsidence, and so on. The parties and their respective technical consultants had reviewed the report and its analysis. However, Wildermuth continued, there was no agreement on how to pay (more to the point, who would pay) for the multiple measures that would be required. Schneider suggested that without some way to determine who would do what, at what costs, the 1995 report might be useful but it could not be characterized as a plan. No one disagreed. Traci Stewart then spoke up. It was true there had been no consensus in 1995 on how to proceed with an entire basin management program, she acknowledged, and equally true that the Watermaster controversy had obviated such a consensus during 1996 and 1997, but that did not mean everything had stood still. Rather, the Watermaster staff and engineering consultant, along with staff members of the various parties and stakeholders, had kept working while the attorneys and directors of the various parties were occupied with the Watermaster fight. Stewart explained that they had focused their efforts on putting various pieces into place, pieces that had benefits in their own right but also would be needed whenever the time came to resume progress on a broader basin management plan. As Stewart put it, they had tried to identify the impediments to working on an OBMP someday, and whittle away at those.1 They knew that expanded metering of wells and recording of groundwater production would be needed, so they worked on that. They knew that a workable land-use conversion produced would be needed and, as noted in Chap. 8, they got that done. They knew there needed to be some planning for the further development of recharge facilities – it was clear that there

 Reporter’s Transcript of Oral Proceedings, October 21, 1997, at pp. 25–26.

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was not enough recharge capacity in the basin but not clear how much more was needed and where, so they worked on that. Storage limits would undoubtedly be another component of a new basin management program, so they started on that too. In summary, although the 3 years prior to Schneider’s October 2017 hearing had been riven with conflict, a number of elements of what could become an OBMP had advanced during that period. To illustrate, during the fiscal year 1995–96, in addition to the regularly scheduled meetings of the Pool Committees, the Advisory Committee, and the Watermaster (CBMWD) Board, there were 20 special or ad hoc meetings or workshops. This was the year during which the Advisory Committee moved to replace CBMWD as Watermaster and directed Watermaster staff to get a separate computing system and move out of the CBMWD headquarters, and CBMWD moved for the first time to disqualify the Watermaster Counsel. One might therefore reasonably assume that the Watermaster dispute accounted for this flurry of special meetings and workshops. Instead, the Watermaster annual report for that year records that 11 of the 20 meetings had been wholly or partially about the desalter project, four had been about storage limits and three about conjunctive use storage programs, and two had been on the budget. Eight of the 20 special meetings – less than half – were wholly or partly about the possible change of Watermaster.2 The component-by-component approach pursued by the Watermaster staff, the engineering consultant Mark Wildermuth, and several of the producers included: (a) well metering, well inspections, and production monitoring; (b) developing a plan for new or expanded recharge facilities; (c) revisiting the difficult issue of storage of water in the basin; and (d) studying the groundwater quality problems especially in the southern half of the basin in anticipation of the desalter project. As recounted in Chap. 7, well metering and accurate recording of groundwater production had remained a problem despite the 1978 Judgment’s requirements. The installation, operation, and maintenance of meters on wells was essential to having reliable records of production, and accurate production records were essential to the implementation of the physical solution in the Judgment: imposing replenishment assessment on those who produced more than their assigned rights in a year, keeping records of the parties’ carry-over and storage amounts, and moving the correct quantities of production from the Agricultural Pool to the Appropriative Pool. Despite its importance, meter installation, well inspection, and production monitoring had lagged during the first 15 years since the Judgment. Traci Stewart and her staff, along with Mark Wildermuth and several parties, attempted to accelerate progress after 1994, implementing a Well Inspection and Meter Installation Project that had been designed after Judge Turner’s 1990 ruling in the moving parties’ lawsuit. There were an estimated 1000 wells in the basin, of which around 800 were believed to be actively producing groundwater. By the end of June 1996, inspections had been completed for 603 of the 650 targeted by the Project. Production data were available for 528 wells, either from installed flow meters or by means of 2  Chino Basin Watermaster, Nineteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1995–96.

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calculations made for wells with metered electricity use.3 By the end of 1997, all active wells were metered, but there were still issues. Only about 350 of the meters had been installed and verified by Watermaster staff, so the reliability and accuracy of the others had to be assumed but could not be assured. Also, the Watermaster was receiving production reports regularly from approximately 600 of the estimated 800 active wells; the rest were supposed to be reporting but were not. Approximately 100 wells had online meters that could report data automatically and continuously. An obvious goal was to get all wells equipped with online meters installed and inspected by Watermaster staff, but this would require additional time and money (at the time, online meters were approximately $1000 per well) for acquisition, installation, and then ongoing maintenance and occasional replacement.4 Beyond needing these data to administer the Judgment requirements, having accurate information about wells and production would be crucial to the development of any more comprehensive and active basin management strategies to deal with recharge, storage, and the movement and remediation of groundwater contamination. Having a useful monitoring network across the basin for these purposes would require more than just metering and inspecting existing wells. It would mean a combination of hundreds of monitoring points throughout the basin located so they could reveal information about water levels and movement, and about groundwater quality if possible.5 It also would mean integrating the well data with a model of the basin in order to be able to track trends and forecast the possible impacts of changes in production, recharge, and storage. In 1996–97, the staff and Wildermuth began developing a global positioning system (GPS) database, and populating the database with latitude and longitude coordinates for each well.6 By the end of June 1998, GPS coordinates for 600 wells had been identified and entered into the database.7 With the GPS data, combined with production reporting from all of them and groundwater level and groundwater quality data from enough of them, it would be possible to build an improved basin model. The Watermaster staff and Wildermuth developed plans to expand the groundwater level monitoring program in 1997–98 and groundwater quality monitoring in 1998–99.8 The groundwater quality monitoring program began during 1995–96 with water quality samples drawn from about 60 wells in the agricultural area of the basin. These were wells that the Watermaster had installed and therefore could access on 3  Chino Basin Watermaster, Nineteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1995–96. 4  Stewart and Lauffer interview, March 18, 1998. 5  Ibid. 6  Chino Basin Watermaster, Twentieth Annual Report of the Chino Basin Watermaster, Fiscal Year 1996–97. 7  Chino Basin Watermaster, Twenty-First Annual Report of the Chino Basin Watermaster, Fiscal Year 1997–98. 8  “Summary of Engineering Activities of the Chino Basin Watermaster for the First Twenty Years of Operation 1977–1997.” Report appended to the 1996–97 Annual Report of the Chino Basin Watermaster.

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a regular basis. Groundwater quality data from these wells that were sampled directly by Watermaster personnel were combined with groundwater quality data from approximately 200 other production wells elsewhere in the basin. The data from those wells were required by other agencies (for example, by State public health and drinking water regulators) from the well owners such as cities and the water companies and water districts in the basin. Watermaster staff and Wildermuth assembled a groundwater quality database from this combination of data.9 Groundwater quality monitoring advanced in cooperation with the Regional Board, SAWPA, and other partners, to be discussed below in connection with the desalter project. Monitoring was also linked with the effort to move forward with groundwater recharge planning and improvements. During 1995–96, Chino Basin Water Conservation District and the Watermaster board agreed to a Memorandum of Understanding to develop a Chino Basin Groundwater Recharge Master Plan (RMP).10 Phase 1 of the plan development process entailed evaluating the amounts of runoff that were recharging the basin, and estimating what (if any) additional recharge amounts were possible at the existing recharge sites.11 The Water Conservation District and Watermaster also started a water quality testing program at the recharge basins, to sample the water quality attributes of water percolating into the basin, especially after rainstorms.12 This information could illuminate whether and where and in what ways the recharge water being introduced into the basin was affecting groundwater quality. Recharge might be improving groundwater quality, as the CBMWD had claimed, but data on the recharge water making its way into the basin were needed in order to verify that claim. It also might be true that the water quality characteristics of runoff directed into recharge basins could differ by location within Chino Basin and thus the groundwater quality impacts from recharge might vary. A draft of the Recharge Master Plan Phase 1 report was circulated in May 1997, and the final Phase 1 report was completed in January 1998.13 Further development of the RMP was absorbed into the OBMP development process after that. 9  Chino Basin Watermaster, Nineteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1995–96. 10  Ibid. 11  Chino Basin Water Conservation District was not the only important partner in the recharge program. The San Bernardino County Flood Control District operated the flood control facilities, including stormwater channels, that directed runoff to the recharge basins. Unfortunately, the agreement between the flood control district and Watermaster had lapsed. In order to allow water spreading in the recharge basins to continue, the flood control district agreed to abide by the old agreement for 1998 and 1999. Watermaster and the flood control district agreed that a new agreement would be developed in as part of the development of the OBMP. Chino Basin Watermaster, Twenty Second Annual Report of the Chino Basin Watermaster, Fiscal Year 1998–99. 12  Chino Basin Watermaster, Twentieth Annual Report of the Chino Basin Watermaster, Fiscal Year 1996–97. 13  Chino Basin Watermaster, Twentieth Annual Report of the Chino Basin Watermaster, Fiscal Year 1996–97, and Chino Basin Watermaster, Twenty-First Annual Report of the Chino Basin

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As may be recalled from Chap. 7, the issue of recharge is closely tied to the issue of storage of water in the basin, a topic of recurring contestation in Chino Basin. Here too the Watermaster staff, Wildermuth, and some of the parties attempted to make progress during the mid-1990s. As soon as the 1995 report on the Chino Basin Water Resources Management Study was completed, Wildermuth set to work developing a study of storage limits and losses in the basin, with input from the Pool Committees.14 Storage limits were important for all of the reasons reviewed in Chap. 7 regarding groundwater levels and groundwater quality in the basin. Storage losses were important to understand as well. As noted in Chap. 2 and referred to occasionally thereafter, Chino Basin leaks: groundwater flows in a general southeasterly direction and, depending on groundwater levels and other factors, exits the basin as underflow or rising water along the Santa Ana River. Because of this natural physical phenomenon, not all water stored in the basin stays in the basin. That fact has a number of ramifications. First, there is the possibility that parties’ storage accounts may become inaccurate and inflated over time unless there is an adjustment factor for losses. The danger here is that parties might build up storage account balances and then, when the parties choose to withdraw their stored water through pumping or transfers, the stored water is in fact not all there and the basin gets overdrawn. Second, the prospect of losses could affect Chino Basin’s role in a conjunctive use program where surplus water is stored in the basin during wet years  – by MWD, for example  – to be extracted during dry years. Again, unless there is some adjustment for losses from storage, subsequent extractions could exceed what actually remains of the stored water. Third, as Chino, Norco, and Water Works District No. 8 contended in the moving parties’ suit at the end of the 1980s, storage losses have a groundwater-quality dimension too – it may be that the poorer-­ quality groundwater at the southern end of the basin gets pushed toward the land surface and toward the river, or that contamination plumes within the basin are moved toward previously uncontaminated wells. Storage limits and losses are two sides of the same coin – both affect what the parties and Watermaster can do, and with what effects. The Pool Committees, Wildermuth, and the Watermaster staff met occasionally from 1995 through 1997 about the issue of storage limits and losses. Although the study was not concluded and eventually the storage issue also was folded into the OBMP development process, there were a couple of noteworthy developments in the meantime. Watermaster had entered into a Cyclic Storage Agreement with MWD for a conjunctive use program, as mentioned in Chap. 8. The MWD and Watermaster agreed to 1-year extensions of the agreement in 1995–96 and 1996–97,

Watermaster, Fiscal Year 1997–98. 14  Chino Basin Watermaster, Nineteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1995–96. Also, “Summary of Engineering Activities of the Chino Basin Watermaster for the First Twenty Years of Operation 1977–1997.” Report appended to the 1996–97 Annual Report of the Chino Basin Watermaster.

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but at the end of 1998 the Cyclic Storage Agreement expired.15 If or when there would be another arrangement with MWD to store water in Chino Basin, it would have to be agreeable to the new Watermaster board. Also, while they were still discussing and debating the question of storage limits and losses, the Pool Committees, Advisory Committee, and Watermaster board agreed to place a cap on storage in the basin effective June 30, 1996, with no new storage accounts or agreements to be approved by Watermaster until some storage management plan were settled. Given the strong interest of some parties and stakeholders in basin storage, the adoption of the cap and the ban on new storage provided added impetus to the OBMP development process that got underway in 1998.

9.2  Back to the Desalters There was no greater impetus, though, than the desalter project and the dairies. The groundwater quality issue remained the paramount issue in Chino Basin and, indeed, in the whole Santa Ana River watershed.16 It continued to attract engagement and pressure from multiple sources, not all of them within the basin: the Regional Board, the member agencies of SAWPA, the Orange County Sanitation District downstream, and a relatively new entity named the Santa Ana River Watershed Group. As described in Chap. 8, the topics of agricultural water quality impacts, groundwater clean-up in the basin generally, and desalting facilities were among the triggers in the fight for control of the Watermaster. Even at the height of the fracas, however, substantive action was taking place on this contentious issue. The Regional Water Quality Control Boards in California set basin-wide water quality objectives, taking into account the uses of water in the watershed, current water quality conditions, and state and federal regulatory standards. The resulting “Basin Plans” are amended as needed and updated periodically. In 1994, the Santa Ana Regional Water Quality Control Board updated the Basin Plan for the Santa Ana River Watershed. To no one’s surprise the 1994 Santa Ana River Basin Plan focused considerable attention on the groundwater quality problems in the Chino Basin. From the Regional Board’s standpoint, groundwater quality degradation in Chino Basin mattered not only within the basin itself but for water quality in the Santa Ana River water and downstream uses that included drinking water and groundwater recharge in Orange County. The Regional Board had established a working collaboration with SAWPA, the joint-powers agency composed of five water districts that covered the watershed, including Chino Basin Municipal Water District which, of course, doubled as the Chino Basin Watermaster. Beginning in 1995 at the Regional Board’s direction, 15  Chino Basin Watermaster, Twenty Second Annual Report of the Chino Basin Watermaster, Fiscal Year 1998–99. 16  Marsh interview, October 29, 1998; McIntyre and Anderson interview, October 29, 1998; Quincey and Anderson interview, October 28, 1998; Thibeault interview, October 26, 1998.

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SAWPA managed a watershed-wide study of total dissolved solids (TDS, a/k/a “salts”) and total inorganic nitrogen (TIN) with the participation of 22 water and wastewater agencies in the watershed, and a Groundwater Quality and Level Monitoring Program focused on Chino Basin and conducted primarily by the Chino Basin Watermaster staff and Wildermuth. The Watermaster’s/CBMWD’s participation in these studies for the Regional Board shielded the agricultural producers from having to undertake additional water quality monitoring themselves.17 The leadership at the Regional Board, in partnership with other entities in the watershed, tried to encourage projects that could be simultaneously beneficial to water quality in the watershed and to the dairies themselves. Important partners in this endeavor were SAWPA, the Orange County Sanitation District, and the Santa Ana River Watershed Group. The Orange County Sanitation District, located near the Pacific Ocean at the downstream end of the Santa Ana River, was literally at the receiving end of all wastes from the upper as well as lower areas of the watershed. This included the wastes carried by SAWPA’s Inland Empire Brine Line and Santa Ana River Interceptor, as well as what flowed in the river itself. The district had an obvious interest in the waste load being generated throughout the watershed, and by the 1990s had begun taking an active interest in waste reduction and mitigation activities in the upper watershed area even though that was outside its direct service area. The Orange County Sanitation District was not a member agency of SAWPA18 so, in addition to its working relationships with the water districts and SAWPA, the sanitation district became active on its own behalf in watershed-wide issues. The Santa Ana River Watershed Group was a forum for a variety of private as well as public organizations interested in water resource issues  – environmental groups such as Orange County Coastkeeper and Inland Empire Waterkeeper, nature and land conservancy groups who took an interest in species and habitat protection and open-space preservation, and some municipalities. It received funding and technical support from Orange County Sanitation District and SAWPA. Of particular interest for our purposes, the group served as a nongovernmental forum through which individuals and organizations could learn about one another’s interests and concerns, form alliances around particular issues or projects, engage in direct lobbying with state and federal officials (which the water agencies could not do), and otherwise support actions its members believed would be beneficial to the river and surrounding area. Through collaboration among the Regional Board, SAWPA and its member agencies, the Orange County Sanitation District, the Santa Ana River Watershed Group, and on certain issues the Milk Producers Council, support developed for the following actions. One was improved stormwater and flood control facilities and operations. As mentioned in Chap. 7, because the dairies were concentrated toward 17  Chino Basin Watermaster, Nineteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1995–96. 18  The lower area of the watershed was represented on SAWPA by the Orange County Water District, which was responsible for managing the groundwater basin in Orange County.

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the lower end of the upper area of the watershed, their lands were occasionally flooded and manure containment structures were damaged during heavy storms. One consequence of those incidents was large hits of waste to the river. Through coordinated efforts, this collection of interests in and around Chino Basin was able to secure millions of dollars in federal and state funding for some stormwater control improvements to reduce the number and severity of those incidents.19 Another action was manure removal and composting. Chino Basin Municipal Water District operated wastewater treatment plants located in Chino Basin. Wastewater treatment plants produce treated water that can be used, some residual wastewater that cannot be used, and solid wastes removed during the water treatment process. Those solids must be disposed of, which is a cost to the wastewater treatment operator. In 1996, CBMWD as Watermaster, CBMWD as a SAWPA member agency, SAWPA member agency Orange County Water District, Orange County Sanitation District, and the Regional Board negotiated agreements for manure removal and co-composting programs.20 Solids from the CBMWD treatment plants and manure from the dairies could be converted (co-composted) into a usable fertilizer for application on farmlands away from the basin. CBMWD operated the co-composting facility starting in 1995, and Orange County Water District and Orange County Sanitation District helped subsidize the costs of having 150,000 tons of manure collected and trucked to the co-composting facility.21 Even combined, these actions could not remediate the decades-long accumulation of salts within Chino Basin, but they could and did help keep the problem from getting worse every year. Remediating the accumulated problem of water quality degradation would require a process of extraction and treatment, i.e., desalter facilities. The Regional Board continued to insist that a desalter project be part of the remediation effort in Chino Basin. Beginning in 1995, Watermaster staff and Wildermuth began an informal effort to model and estimate “the basin-wide benefits of regional groundwater treatment systems [desalters] in the central and southern Chino Basin… developing estimates of the salt removed, replenishment obligations, and effects on safe yield.”22 On a parallel track, under the SAWPA umbrella, member agencies CBMWD, Orange County Water District, and Western Municipal Water District working together as “Project Committee 14” had moved forward with plans to construct the first Chino Basin Desalter.23  Marsh interview, October 29, 1998; Thibeault interview, October 26, 1998. See also David Herman, “Funding Could Keep Dairies Dry.” The Los Angeles Times. October 21, 2000. 20  Chino Basin Watermaster, Nineteenth Annual Report of the Chino Basin Watermaster, Fiscal Year 1995–96. 21  Thibeault interview, October 26, 1998. 22  “Summary of Engineering Activities of the Chino Basin Watermaster for the First Twenty Years of Operation 1977–1997.” Report appended to the 1996–97 Annual Report of the Chino Basin Watermaster. 23  As described in Chap. 5, SAWPA is a joint-powers agency composed of five member agencies. Many projects developed, funded, and implemented by SAWPA are conducted by subsets of the 19

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For Chino Basin Municipal Water District, this move fit in with the district’s long-developing transformation into a wastewater treatment agency and producer of recycled water for reuse. CBMWD had formed in 1950 and become a member agency of Metropolitan Water District, as noted in Chap. 4. Gaining access to MWD’s imported water supplies was not CBMWD’s only role, however. In the 1950s and 1960s, many of the residents and businesses located within CBMWD were supplied with water by water companies24 and did not have sewer service. CBMWD began serving these unsewered areas in the western end of San Bernardino County. CBMWD’s oldest wastewater treatment plant, known as Regional Plant Number 1, or RP-1, was built in 1948 and taken over by CBMWD upon its establishment in 1950. A second wastewater treatment plant, RP-2, was built and placed in operation in the 1962. In 1992, the wastewater output from RP-2 began receiving advanced treatment at CBMWD’s new Carbon Canyon Wastewater Reclamation Facility. CBMWD brought another advanced treatment facility, known as RP-4, online in 1997. For its first several decades of wastewater treatment, CBMWD discharged the treated water, but beginning in the 1990s with the Carbon Canyon and RP-4 facilities, the district had begun the push toward recycling that water – something that was taking hold rapidly throughout California and elsewhere. With the growth and urbanization of Chino Basin, CBMWD had evolved into a regional wastewater agency and producer of recycled water for reuse, operating multiple wastewater reclamation plants.25 In this respect, building and operating a desalting facility to treat pumped groundwater was an extension of CBMWD’s already established operations. Thus, even at the zenith of the fight between CBMWD and the Advisory Committee over the Watermaster appointment and control of basin management policy, CBMWD and the other member agencies in SAWPA Project Committee 14 were poised to move forward with the basin’s first desalter. Getting this project underway was also key to easing the pressure from the Regional Board, which was vital to the agricultural producers but also to the future of the rapidly developing municipalities such as Ontario, Chino, and Chino Hills. The year 1998 proved to be consequential in multiple ways within Chino Basin. On February 19th, Judge Gunn ruled on the motion to appoint a new nine-member Watermaster board, and the nine members were named by the end of the month. He also ordered the new Watermaster to get to work right away on the development of the OBMP. The Chino Basin Municipal Water District board of directors held its final meeting as the Chino Basin Watermaster board on March 4th, to approve five members, organized as “project committees.” Thus, even though a project may be identified as a SAWPA project, that does not necessarily mean it involved collaboration among all five SAWPA member agencies. SAWPA Project Committee 14, which has been exceptionally impactful in Chino Basin, is an example. 24  Some still are: a number of water companies remain active in Chino Basin. Since the 1950s, however, several water companies have merged or have been absorbed into municipal utilities or public water districts such as Cucamonga Valley or Monte Vista. 25  Grindstaff interview, September 26, 2017.

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several actions relating to the transition to the new board. The nine-member board met for the first time the next day. It appointed a new Watermaster general counsel, Wayne Lemieux, and for the first time in years the Watermaster board and the Watermaster Advisory Committee were not represented by separate attorneys.26 Mark Wildermuth was retained by the new board to lead the engineering work that would be needed for development of the OBMP. At the end of June, there were a couple of personnel moves that turned out to have important long-term effects in the basin. Joe Grindstaff, who had been general manager of Monte Vista Water District, became the Executive Director of SAWPA from which position he made major contributions to the projects that were necessary as part of the OBMP. Mark Kinsey left CBMWD to take Grindstaff’s place as general manager of Monte Vista Water District where he remained for 21 years. In July 1998, Chino Basin Municipal Water District adopted a new name. It became the Inland Empire Utilities Agency. The CBMWD board had decided that the new name better suited the type of agency it had become, with a diversified portfolio of water supply, wastewater treatment, recycled water production, and even energy production in connection with its advanced treatment plants.27 It remains the Inland Empire Utilities Agency, or IEUA, today. In September 1998, IEUA along with Orange County Water District and Western Municipal Water District began construction of the first Chino Basin Desalter. Less tangible but no less important, 1998 marked a kind of turning point. The conflicts over Watermaster and basin management that began in 1988 and reached their crescendo in 1997 had been intense and hard fought, and scars doubtless remained. On the other hand, once it was over things were different. The new Watermaster board began its work on the OBMP, which absorbed all its attention and energy as well as that of the Pool Committees, Advisory Committee, and staff.28 Inland Empire Utilities Agency emerged with its new image and in a sense became freer to concentrate on its own operations without also having responsibility for groundwater management and administration of the Judgment. In ways that would have been hard to see at the time, the separation provided room for future collaboration.

9.3  The Optimum Basin Management Program The new nine-member Watermaster board met twice per month beginning March 1998 to move the OBMP development process forward. Anne Schneider and Judge Gunn had astutely recognized how badly the parties wanted to keep the control they  James Markman had been serving as Special Counsel to the Advisory Committee during 1997–98 but, with the appointment of the new Watermaster board, the Advisory Committee concluded that it no longer needed its own counsel. 27  Quincey and Anderson interview, October 28, 1998. 28  Stewart and Lauffer interview, March 18, 1998. 26

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had been given with the new board. The only guarantee of doing so was to produce the OBMP, securing Schneider’s endorsement and Gunn’s approval. A prodigious amount of time and effort were devoted to that endeavor. The required Scope of Work document for the OBMP was submitted to the Special Referee and the Court on June 25, 1998. Special Referee Anne Schneider assisted by Technical Expert Joe Scalmanini made several comments and recommendations, and a revised Scope of Work was submitted on August 7th. The Special Referee had comments and recommendations on the revised version also. A second revised version was completed on October 21st and submitted on October 23rd.29 It was also presented to and discussed with stakeholders at a workshop at the Watermaster office on October 29th with the Special Referee present.30 A hearing with Judge Gunn on the revised Scope document was held on November 5, 1998, and he approved it at the close of that hearing.31 Meetings, workshops, studies, and drafting continued at a rapid pace. Drafts of sections 1, 2, and 3 of the OBMP were submitted to the stakeholders in December 1998. From July 1998 through June 1999, 23 OBMP workshops were held with the Watermaster Board and stakeholder representatives.32 A study of future desalter facility needs in Chino Basin, i.e., beyond the desalter that was already under construction, was contracted out to engineering firm Black & Veatch while Mark Wildermuth and his firm continuing drafting the OBMP report itself. On August 19, 1999, Wildermuth Environmental produced the OBMP Phase I Report which was distributed to all parties as well as the Watermaster Board and the Special Referee. There were four sections to the report. Section 1 was a brief introduction that included a summary of how the OBMP development process had come to be. The other three sections were much more detailed. Section 2 reported on the physical conditions in the basin. Section 3 was titled, “Goals of the Optimum Basin Management Program,” and Section 4 was titled, “Management Plan.”33 The Phase I Report also identified five subareas within Chino Basin and labeled them “Management Zones” – the Management Zones (MZs) remain in use by the Watermaster for planning and carrying out projects focused on issues or conditions that are specific to that zone. As shown in Fig. 9.1, MZ1, MZ2, and MZ3 are arrayed along the western, central and northeastern areas of Chino Basin, and MZ4 and MZ5 are in the southeast. The zones were delineated based on groundwater flow

 Chino Basin Watermaster, Recommended Scope of Work for the Development of the Chino Basin Optimum Basin Management Program. October 21, 1998. Also, Supplemental Scope and Level of Detail for the Optimum Basin Management Program. Submitted by Chino Basin Watermaster, October 23, 1998. 30  Chino Basin Watermaster, Notice of Workshop Meeting of the Chino Basin Watermaster Board and Committees. October 29, 1998. 31  Chino Basin Watermaster, Twenty Second Annual Report of the Chino Basin Watermaster, Fiscal Year 1998–99. 32  Ibid. 33  Wildermuth Environmental. Optimum Basin Management Program Phase I Report. Prepared for Chino Basin Watermaster. August 19, 1999. 29

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Fig. 9.1  Chino Basin Management Zones. (Source: Chino Basin Watermaster)

characteristics within Chino Basin – groundwater moves within the basin but it does not move uniformly. Subsurface characteristics guide groundwater movement such that the MZs are distinct enough from one another hydrologically that management activities in one zone “have limited impacts on the other MZs.”34 Watermaster hosted a public hearing on the OBMP Phase I Report on September 15, 1999. Seven of the nine Watermaster Board members were present, as were Traci Stewart, Mark Wildermuth, and Anne Schneider and Joe Scalmanini. The Board received comments on the Phase I Report from several attendees. While several compliments were offered regarding the amount of effort that had been made, the hearing also demonstrated that much remained to be done, especially in regard to getting all the stakeholders to coalesce around the path forward.35 The first two speakers objected to what they perceived to be the report’s overstating of agriculture’s contributions to the basin’s problems and understating of agriculture’s contributions to improvements (e.g., providing water for the desalter, helping to get funding, and participating in composting and manure removal). Subsequent comments from several speakers – representing appropriators – highlighted issues associated with financing and implementation. The appropriators knew they were ultimately on the hook financially, and in some respects the report’s identification of numerous prospective projects and activities heightened their wariness about how much this was all going to cost and how those costs would be distributed.

 Chino Basin Watermaster, State of the Basin Report 2016.  Reporter’s Transcript of Oral Proceedings in re Public Hearing on the Optimum Basin Management Program, Phase I Report. September 15, 1999.

34 35

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Reprising her comments in October 1997 about the report on the Chino Basin Water Resources Management Study, Anne Schneider commented that the Phase I report – even with its Section 4 – was not really a plan. It was a good report, in her view, filled with things that might be done and could be expected to be helpful. Without addressing cost allocation and implementation of projects – who would do what and who would pay what – it still was not a plan, however. Marilyn Levin, representing the State of California’s interests within the basin, agreed and suggested that the Watermaster Board, the Special Referee, and the Court could accept the Phase I Report as a report, and move on to the development of an implementation plan as Phase II. She also recommended that, since the Phase I Report showed substantial progress being made on the OBMP, the parties could be given until May 31, 2000 to come up with the implementation plan. This would still fit within the outer deadline of June 30, 2000, that had been given by Judge Gunn when he approved the appointment of the nine-member watermaster board. At the close of the public hearing, the Watermaster Board members voted unanimously as Levin had recommended: to adopt the Phase I Report as a report only. The public hearing had produced a mixed outcome. On the one hand, there had been plenty of acknowledgement of the progress that had been made and a unanimous vote of the Board to adopt the report. On the other hand, much work remained to be completed and there had been clear signals that the parties were not all ready to get behind a plan yet. Additional engineering work would be essential for the implementation plan, to be sure, but perhaps even more daunting was the negotiation process that lay ahead to secure agreement on implementation and financing. In the meantime, two encouraging developments were taking place. In July 1999, the Inland Empire Utilities Agency installed Richard W. (Rich) Atwater as its new General Manager and Chief Executive Officer. Atwater’s arrival in Chino Basin was encouraging for two reasons. The more important reason was his experience in getting major projects funded and implemented, including his most recent experience as the general manager of the Central Basin Municipal Water District and the West Basin Municipal Water District. Secondary but only slightly less consequential was the prospect that a new general manager and CEO at IEUA could enhance the reset of the relationship between IEUA and the Chino Basin Watermaster. As mentioned earlier, tempers had begun to cool once the dispute over the Watermaster appointment had been decided in early 1998, but some residual mistrust remained. The combination of the new Watermaster board with the change of leadership at IEUA, plus the attitude and disposition Atwater brought to the job, provided an opportunity for a fresh start.36 The first desalter in Chino Basin was under construction by IEUA and the other two Project Committee 14 members, OCWD and WMWD. IEUA was also involved in the OBMP development process through its representative on the Watermaster Board. Atwater quickly increased IEUA’s engagement in support of the OBMP by offering IEUA as the lead agency to develop a Program Environmental Impact

36

 Stewart interview, October 30, 2000.

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Report for the OBMP.37 Whatever combination of projects emerged from the OBMP would require environmental impact review through the California Environmental Quality Act or CEQA process. Everyone involved in the OBMP development process knew this, of course, but the Watermaster Board lacked the legal status to initiate CEQA review and, even if it could have done so, no one was sure whether and how the already overextended Watermaster staff could execute or oversee that process simultaneously with the development of the OBMP itself. A partnership was forged, with IEUA taking the lead on CEQA review while the Watermaster Board, staff, consultants and committees worked on the OBMP implementation plan. In addition, Atwater teamed up with SAWPA Executive Director Joe Grindstaff and the other SAWPA member agencies to find funding for projects in Chino Basin and the rest of the Santa Ana River watershed. In late 1999, California legislators along with the governor’s staff and state water agencies were developing a proposal for a new water bond to support conservation programs and infrastructure projects. The state’s economic prosperity at the close of the 1990s encouraged them to be ambitious, and figures as high as two billion dollars were in the air. SAWPA leadership enlisted the support of Orange County Sanitation District, the Santa Ana River Watershed Group, and others to form a coalition to secure a large commitment – more than $200 million for the watershed as a whole, with an agreement among SAWPA members that at least $87 million would be targeted to Chino Basin projects including a second desalter facility and expansion of the first one, increased reuse of recycled water throughout the basin, improvements to groundwater recharge facilities, pipelines etc. What emerged in Sacramento at the beginning of 2000 was a $1.97 billion bond issue that was placed before California voters in March 2000 as Proposition 13. It passed. Suddenly there was the possibility that much of the OBMP could be done with OPM – other people’s money. Also at the beginning of 2000, the Watermaster board decided not to renew its retainer of Wayne Lemieux and his firm as Watermaster General Counsel, and contracted instead with the firm of Hatch & Parent for general counsel services and specifically attorney Scott Slater.38 Slater’s arrival in Chino Basin turned out to be another development with significant and lasting impact. Slater had led the negotiations of one of the largest and most contentious agreements in California water history, between the Metropolitan Water District and Imperial Irrigation District over access to a portion of Imperial’s Colorado River entitlement.39 His charge from the Watermaster Board was to try to bring together the Chino Basin parties around the legal and institutional issues associated with the OBMP – who was going to do what and pay what, what the respective roles of Watermaster and other stakeholders  Chino Basin Watermaster, Twenty-Third Annual Report of the Chino Basin Watermaster, Fiscal Year 1999–2000. 38  Chino Basin Watermaster, Twenty-Third Annual Report of the Chino Basin Watermaster, Fiscal Year 1999–2000. 39  Other noteworthy credentials included Slater’s authorship of the two-volume California Water Law and Policy. Coincidentally, he had once clerked for Anne Schneider.

37

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would be. He started as Watermaster counsel in March 2000, with three months left to finish the OBMP and secure Judge Gunn’s approval to keep the nine-member board as Watermaster.40 The additions of Atwater and Slater, combined with Joe Grindstaff, Mark Wildermuth, Traci Stewart, the group of skilled and experienced attorneys representing the parties within Chino Basin, and key stakeholder representatives such as Geoff Vanden Heuvel and Paul Hofer at the Agricultural Pool, and Robert DeLoach and Ken Jeske and other leaders among the Appropriative Pool made for a formidable team, if they could work together for the remaining few months. That plus the possibility of having tens of millions of dollars from the State to use for implementing the OBMP set the stage for the final push. The pace of the 2 years since Judge Gunn’s February 1998 ruling had been exhausting, but during March and April 2000 the effort reached a new level as everyone raced to complete the OBMP implementation plan and negotiate an agreement to carry it out.

9.4  Finding Peace There had been reports and status updates for the Special Referee and the Court throughout the process, of course, but a May 4, 2000 workshop with Special Referee Schneider and Technical Expert Scalmanini deserves particular attention. The workshop had been convened at Judge Gunn’s direction to be a status report on the negotiations surrounding the OBMP implementation plan. Compared with the public hearing in September 1999, the May 2000 workshop provides nearly a night-­ and-­day contrast. In addition to Schneider, Scalmanini, and Schneider’s assistant, there were 48 people present – general managers of water agencies, board members, consultants, attorneys, and Watermaster staff.41 Scott Slater introduced attorneys and consultants for the parties who made brief presentations to Schneider and Scalmanini about the components of the emerging OBMP implementation plan and a memorandum of understanding (MOU) among the parties that had come to be known as “the Peace Agreement.” The presenters also fielded questions from Schneider and Scalmanini. In addition to the information presented, an unspoken but perhaps more significant message was conveyed by the format. Here were attorneys, consultants, and general managers of parties that had been facing each other as adversaries in various combinations for a dozen years,

 There were numerous requests from the parties in 1999 and early 2000 to allow more time, but the deadline pressure persisted. Judge Gunn and Special Referee Schneider coaxed the parties forward, offering encouragement and praise mixed with a commitment to getting the OBMP done by the end of June 2000. They kept alive the stick-and-carrot combination of inviting the state Department of Water Resources to take over as Watermaster if the OBMP process failed, while continuing to express their preference for keeping the nine-member board and commending the progress that was being made. 41  Transcript of Proceedings, May 4, 2000. 40

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collaborating in the presentation of the products of their recent and ongoing negotiations. There still were some unresolved issues, but the overall and consistent message was that they supported the arrangements they had worked out and were committed to making them succeed. Slater characterized what they had been doing during March and April as “developing a strategy that would enable the adoption and implementation of the OBMP in a consensus, unanimously-supported effort.”42 Scalmanini asked a few questions, and Schneider asked a lot. She probed for potential problems and lingering concerns, testing the appearance of unity for weak spots. The presenters’ support held together. For the moment at least, they had become a coalition. An important point made by some of the presenters was that they had agreed to put the Watermaster at the center of certain matters that some of the parties previously had done on their own or through inter-party agreements. These matters included storage, transfers, and recharge. From now on, those activities would all be cleared through Watermaster, which would provide notice to all parties. There would be transparency. The parties appeared to have concluded that, even more than they wanted to do their own thing, everyone wanted to know what everyone else was doing. And furthermore, they trusted that combination of regulatory and clearinghouse functions to the nine-member Watermaster Board. For example, speaking on the storage and recovery or conjunctive use parts of the OBMP, Gene Tanaka of Best, Best & Krieger representing Cucamonga County Water District said, “Sections 7 and 8 deal with the Watermaster’s involvement in conjunctive use. It favors it, it encourages it, and it’s really the key to what we see happening.”43 Things had changed a lot since the 1989 hearings before Judge Turner on the Watermaster’s involvement in conjunctive use programs in Chino Basin. Marilyn Levin, the attorney for the State of California’s interests in the basin, acknowledged explicitly the turn-around: It was clear to everyone, I believe, that the State of California filed comments opposing conjunctive use when there was a first go-around in the ‘80s, and we’re willing, through these principles, to look again at the conjunctive-use program and in good faith support it as long as there’s no material injury to the agricultural pools [sic], to the basin.

And so it went, with each element of the emerging OBMP implementation plan and the developing Peace Agreement. The parties had come together around four basic points: (1) they were willing to entrust the Watermaster with greater control over basin regulation; (2) everyone stood to gain from improving water supply reliability and water quality in the basin, and everyone had to be willing to give something up in order to capture those gains; (3) there was an enormous opportunity, with the passage of the Proposition 13 water bond in March, to launch a combination of projects that would address the myriad interconnected problems in the basin; and (4) that everyone would be protected from “material physical injury.”

42 43

 Transcript of Proceedings, May 4, 2000, at p. 7.  Transcript of Proceedings, May 4, 2000, at p. 47.

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The term “material physical injury” was a cornerstone on which the Peace Agreement and the OBMP Implementation Plan were built. It remains a frequently referenced touchstone of Chino Basin management. The term had two equally important aspects: first, all parties were to be protected from any harm that would be manifested in physical ways such as subsidence, inadequate groundwater levels to support production, excessively high water levels, or groundwater quality impairment; and second, material physical injury did not mean economic injury.44 You might end up paying more or less in assessments or other costs, but that alone could not be a basis for refusing to cooperate in OBMP implementation. Anyone could object to basin management actions on the basis of material physical injury, but not just on the basis of money, and Watermaster had a responsibility to everyone to avoid material physical injury. With everyone mutually assured of no material physical injury, parties could focus on achieving benefits, and with the availability of state funds, achieving those benefits seemed feasible. That focus allowed for rapid progress toward the completion of the OBMP Implementation Plan and the Peace Agreement. At the May 4th workshop, presenters from opposite ends of the basin such as John Schatz on behalf of Jurupa Community Services District and Tom Bunn on behalf of the City of Pomona acknowledged what a difference the funding had made.45 Several presenters praised Scott Slater’s leadership of the negotiations as well as the positive efforts of the parties’ negotiators.46 Mr. Bunn told Schneider and Scalmanini that some progress had been made before Slater arrived but, I’ve had the sense that all the hard issues – a lot of the work was being done, but all of the hard issues were being pushed to the back, and I, like everybody else in the room, kept looking at the calendar and looking at what needed to be resolved and saying how are we going to get from point A to point B. I believe that we’ve mostly done that in this last couple of months, and I credit Mr. Slater not only for recognizing the need and starting a process that would address that need but also for dealing even-handedly with the parties so that we all stayed at the table, and we were able to work in good faith with each other.47

Slater responded, wisely, by giving credit to the parties. He also acknowledged what Schneider and Scalmanini and everyone else in the room knew – that Chino Basin was not known as an easy place to get an agreement: The reputation for historical infighting within the area is legendary… but I will say that the effort, the absolute enthusiasm, the momentum that has been gained, the problem-solving abilities brought to this process by all participants has been just overwhelming…. This has been a really rewarding process to get us to where we are.48

 This dual-aspect definition of “material physical injury” appears in section 1.1(y) of the Peace Agreement. 45  Transcript of Proceedings, May 4, 2000, at p. 54 and p. 72, respectively. 46  For examples, see Transcript of Proceedings, May 4, 2000, at pages 27, 46, 51, and 59–60. Similar observations were made during: DeLoach interview, July 25, 2017; Jeske interview, July 26, 2017; Stewart interview, October 30, 2000; Vanden Heuvel interview, September 28, 2017. 47  Transcript of Proceedings, May 4, 2000, at p. 72. 48  Transcript of Proceedings, May 4, 2000, at p. 86. 44

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Nevertheless, he added, progress was not the same as completion. Between May 4th and the end of June, there were still: a scheduled hearing with Judge Gunn on June 15th; an OBMP Implementation Plan to finalize; a Peace Agreement to finalize, as well as making sure that the Peace Agreement and Implementation Plan documents were consistent in all particulars; and a Program Environmental Impact Report (PEIR) to complete. The crazy pace of the last couple months would have to be maintained for a few more weeks. On June 29, 2000, the OBMP Implementation Plan was completed and approved, and the parties signed the Peace Agreement.49 Also that day, the Chino Basin Watermaster Board, which itself is not a party to the Judgment, did not sign the Peace Agreement but passed a resolution supporting it and pledging to act consistently with the Peace Agreement and the Implementation Plan. Those documents were filed with the Court. The PEIR was also completed by the end of June, approved by the IEUA board on July 12, 2000, and submitted to the Court on July 13th. In an order signed on July 13th, Judge Gunn received and filed the PEIR and provisionally approved the Peace Agreement and OBMP Implementation Plan, subject to several conditions. Motions for amendments to the Judgment were forthcoming from Watermaster, and he was also waiting for a report and recommendation from Special Referee Schneider once she had reviewed the Implementation Plan, Peace Agreement, and motion to amend the Judgment. Watermaster filed the proposed Judgment amendments on August 15th.50 Anne Schneider provided her report on those matters to Judge Gunn and the parties on September 13, 2000. She and Technical Expert Scalmanini were generally favorable about the provisions of the Implementation Plan and Peace Agreement, and recommended that Judge Gunn approve them, but with conditions. Schneider and Scalmanini wanted further clarification about the meaning of some terms in the documents and about how some specific measures would be carried out: particularly, how those matters were understood and interpreted by the parties and Watermaster in case questions or problems arose later, and whether they should be memorialized in modifications of the Judgment. Rather than delay approval and implementation of the OBMP and Peace Agreement, Schneider recommended to Judge Gunn that the parties and Watermaster be allowed to proceed but that the Watermaster Counsel submit a post-hearing memorandum responding to a set of questions raised in the Special Referee’s report. As Schneider pointed out, there was precedent in the Chino Basin case itself for this  There was one exception. Western Municipal Water District provided a statement that it conditionally approved the Agreement but was withholding its signature until some questions about the purchase of water produced by the desalters could be clarified further. WMWD’s conditional approval was sufficient to demonstrate that the parties were unanimous in supporting the Peace Agreement and OBMP Implementation Plan. WMWD added its signature five weeks later, on August 3rd. 50  The Judgment amendments were to: (1) change the land-use conversion formula to set the amount at 2.0 acre-feet of water per year for each converted acre, and (2) allow Non-Agricultural Pool members to transfer pumping rights within the Pool, or to the Watermaster to be dedicated to either desalter replenishment or a basin storage and recovery program. 49

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manner of dealing with prospective issues of clarification or interpretation; Don Stark, the attorney who led the negotiation of the 1978 Chino Basin Judgment, followed up with a Post-Trial Memorandum filed with the Court about six months later, providing an explanation of the issues that had arisen, how the parties had decided to resolve them, and how they envisioned that the Judgment and physical solution it provided would work. Schneider said that she had found Stark’s memorandum “a useful and informative reference” and thought it would be beneficial if the OBMP and Peace Agreement had a similar follow-up document filed while the parties’ understanding of what they intended and had agreed to was still fresh. On August 30, 2000, the Watermaster filed a motion to have the nine-member board appointed for a full 5-year term. This, of course, was the other key issue for which Anne Schneider had been engaged as Special Referee, and on September 25th she produced a report and recommended the extension of the Watermaster board appointment. She supported keeping the nine-member board as Watermaster but recommended that the Court continue to keep the Watermaster on a fairly short leash. She recommended that the judge appoint the board for three more years which, combined with the board’s 2 years as Interim Watermaster, would constitute a full 5-year term. She reiterated some of her concerns about the specificity of the Implementation Plan document, especially with regard to how progress would be demonstrated, and recommended that Judge Gunn require status updates from Watermaster every six months on OBMP implementation, and the completion of revisions to the Watermaster Rules and Regulations by the end of 2000.51 Judge Gunn held a hearing on September 28, 2000, to review Watermaster’s motion to amend the Judgment (authorizing changes needed to carry out the Implementation Plan and Peace Agreement), the motion for appointment of the nine-member Watermaster board to a full term, and both reports from the Special Referee. He followed Anne Schneider’s recommendations on both motions, with one exception – he appointed the nine-member board for a new term of 5 years (to September 30, 2005) rather than for 3 years as she had recommended. The longer term still came with the short leash, however; Judge Gunn’s order included the following conditions: • Submission by October 31, 2000, of a post-hearing memorandum addressing the implementation issues raised by Schneider and Scalmanini; • Submission by December 31, 2000, of a rotation schedule for Watermaster board appointees;52  Revisions to the Watermaster Rules and Regulations were needed for a couple of reasons. One was that the Implementation Plan and Peace Agreement enumerated a number of Watermaster roles and responsibilities, and the Rules and Regulations document should be updated in order to describe the procedures by which Watermaster would carry those out. Another was that the Implementation Plan and Peace Agreement had introduced some new terms (e.g., “Early Transfer,” “New Yield”) that should be integrated into the Rules and Regulations for consistent usage. 52  City of Chino, while supporting the continuation of the nine-member board, had objected to the absence of a specified schedule for the rotation of board member representation among the parties. Judge Gunn observed that the lack of a written agreement on board member rotation “is of consid51

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• Adoption by February 1, 2001, of revised Watermaster Rules and Regulations; • Submission, beginning March 1, 2001, of semi-annual OBMP implementation status reports to the Special Referee and the Court, including updated project schedule and budget information; • Indefinite continuation of Anne Schneider’s and Joe Scalmanini’s appointments as Special Referee and Technical Expert; and • Prior to the end of the 5-year Watermaster appointment, an independent review and verification by Schneider and Scalmanini of the data in the OBMP status reports. Judge Gunn added that the appointment of the nine-member board could be reconsidered if these conditions were not met, and that any subsequent appointment for another 5-year term would depend on the development of a detailed plan for boosting desalting capacity to the 40,000 acre-feet per year target identified in the OBMP. The Post-Hearing Memorandum was submitted on October 26th. The board rotation schedule was submitted that day as well. OBMP status updates began March 1st. Only the deadline for the revised Rules and Regulations had to be extended. They were presented in draft form in March, tentatively approved by Judge Gunn on April 19, 2001. The final revisions were submitted in June and approved on July 19, 2001. At the beginning of 2001, the Watermaster board and committees undertook a reconsideration of staffing and organizational structure. With the ambitious scope of the OBMP and Peace Agreement, and the added duties they assigned to Watermaster, the decision was taken to create a position of Watermaster Chief Executive Officer and hire an executive search firm. On May 30, 2001, the board announced the appointment of John Rossi as Watermaster CEO and he started on July 2nd.53 Rossi had extensive water-industry experience in finance and administration which, in the board’s view, more closely matched the set of responsibilities being assumed by the Watermaster. Traci Stewart continued in the administrative role of Chief of Watermaster Services through the transition, then left after seeing the Watermaster through eight exceptional years of trial and transformation.

erable concern to the Court,” wanting some assurance that it was not a warning sign of dissension among the parties. 53  Chino Basin Watermaster, Twenty-Fourth Annual Report of the Chino Basin Watermaster, Fiscal Year 2000–01.

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9.5  T  he OBMP, the Peace Agreement, and Adaptive Management As presented in the OBMP Implementation Plan document, the Optimum Basin Management Program is organized into Program Elements. The Program Elements address various problems to be addressed, actions to be taken, and opportunities to be pursued. It is significant both substantively and symbolically that Program Element 1 is the establishment of a Comprehensive Monitoring Program. In the Chino Basin OBMP, monitoring is at the forefront, not an afterthought. Program Element 1 includes: in-line meter installation and groundwater production monitoring; groundwater level monitoring; groundwater quality monitoring, surface water quality monitoring; surface water quantity and soil moisture monitoring; and a ground level (i.e., land subsidence) monitoring program. Program Element 2 is a comprehensive recharge program, addressing recharge facilities and sources of recharge water. Program Elements 3 and 5 are combined into one section of the Implementation Plan document54 – both deal with water supply planning in the basin, including the desalter facilities. Program Element 4 is a management plan targeted to Management Zone 1 (MZ-1) along the west side of the basin, where the subsidence and fissuring had occurred and where there were also concerns about increasing recharge and adjusting production rates and locations. Program Elements 6 and 7 are combined in one section of the Implementation Plan document, dealing with the Regional Board’s Basin Plan objectives and salt management. Program Elements 8 and 9 address the management of storage in the basin and conjunctive-use programs. Each section of the Implementation Plan contained a summary of the current status with regard to that Program Element(s) – any management activities currently under way and who was undertaking them. The current status summary was followed by a short-term (1–3 years) set of planned actions, a medium term (4–10 years), and a longer planning horizon to the year 2050 where anticipated future programs and needs are discussed. Overall, the Implementation Plan document conveys an adaptive groundwater management approach without using that terminology. The plan emphasizes monitoring, with a set of specific actions to be undertaken in the short term, and a longer-term horizon where future actions would occur based on updated information about basin conditions. Learning more about the basin, how it works, and how it responds to various human actions and environmental circumstances and changes (e.g., precipitation, runoff and percolation, inflow from adjacent basins) is a focus throughout the Implementation Plan document. It calls for the safe yield of the basin to be recalculated in fiscal year 2010–11 and every 10 years thereafter, and for the Recharge Master Plan to be updated at 5-year intervals. The Peace Agreement document concentrates on the parties’ responsibilities, options, and actions. It is a set of commitments with a 30-year span: by signing,  The document notes on p. 2, “Some of the program elements have been combined because they overlap and have synergies between them.”

54

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each party agreed to be bound by these commitments and arrangements until 2030, and the agreement is potentially renewable for another 30 years to 2060. Whereas the Implementation Plan has a primary emphasis on management, the Peace Agreement may be said to have a greater focus on governance. As already mentioned, it places the concept of “material physical injury” at the center, with all parties covenanting to refrain from imposing material physical injury on one another and the Watermaster charged with reviewing basin conditions and any and all proposed actions to assure that material physical injury to any party will be avoided or, if it cannot be avoided, be entirely mitigated. The Peace Agreement increases both the authority and the obligations of the Chino Basin Watermaster. The Agreement clarifies that all parties recognize the Watermaster’s authority over recharge, storage, and transfers of water within the basin. On some of these matters the Agreement basically reinforces and restates language from the 1978 Judgment, but on other matters it goes beyond the Judgment language for the sake of clarity. The Watermaster’s authority is circumscribed, however. It cannot deny any party the opportunity to recharge, store, or transfer water without good reasons and the opportunity for a hearing; it must deal with all parties even-handedly. It must develop uniform rules and regulations governing its own conduct (to be approved by the Pool Committees, the Advisory Committee, and the Court) including a set of applications, forms, and procedures for receiving, reviewing, and deciding upon parties’ applications for transfers or storage or withdrawals from storage. Watermaster is obliged to ensure that all parties are informed of other parties’ actions and have opportunities to comment or contest. Watermaster’s own decisions and actions may be challenged by parties and reviewed by the Court upon motion. The Watermaster board and staff are also committed by the Peace Agreement to manage the basin for the benefit of all parties, in language that aligns with the OBMP Program Elements. Watermaster is obligated to • protect and enhance the safe yield of the basin through replenishment and recharge; • assure sufficient recharge capacity to meet OBMP goals and the parties’ water supply needs; • balance recharge across areas of the basin in order to try to maintain groundwater access and usability in all areas and avert groundwater declines that would adversely affect parties; • recharge the basin with the lowest-cost, highest-quality water that is available, with a preference for “native storm water”, i.e., precipitation and runoff originating in the mountains, the river, or on the basin floor; and, • evaluate any proposed transfers of production rights or stored water for potential material physical injury. As summarized by the Watermaster in a court filing years later, “Watermaster Parties entered into the Peace Agreement, resolving disputes among themselves as to Watermaster’s power and authority regarding Basin recharge, ownership of property, water transfers, storage, yield management, land use conversions, assessments,

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and the OBMP.”55 In addition, several specific commitments are embedded within the Peace Agreement that reflect particular concerns of individual parties that were addressed in order to achieve consensus.56 The Peace Agreement and OBMP Implementation Plan documents both state emphatically that the Chino Basin Watermaster will not own facilities or any real property. The parties clearly wanted to avoid a situation in which Watermaster employed its authority regarding recharge, storage, water quality, etc. by building and operating its own capital projects. The clear intention was for Watermaster to serve as a regulator and clearinghouse for management activities but leave physical facility construction and operation to the water districts, cities and county governments, or other agencies in the basin. That has remained the case, as described further in Chap. 14. The Peace Agreement committed all parties to “good faith and fair dealing” and to contribute their own efforts on an ongoing basis to help develop funding and cooperation for the implementation of the OBMP. The Agreement also required unanimity  – all parties had to sign and agree to its commitments. Furthermore, under its terms, changes to the Peace Agreement also require unanimity. To aid in assuring parties that they were not taking an excessive gamble, the Agreement contains two “conditions precedent,” meaning that even after the parties signed, they would not be bound by the Agreement unless two other things occurred. One condition precedent was the Court’s approval and acceptance of the OBMP and the Peace Agreement  – without the Court’s blessing, clearly the agreement was unenforceable and therefore not binding. The other condition precedent was State legislative appropriation of the funding for SAWPA in the Proposition 13 water bond – at the time the Implementation Plan and Peace Agreement were being completed, the water bond measure had been approved by the voters but the California Legislature had not yet passed an appropriations bill to distribute the funds raised by the bond measure. If somehow that did not end up occurring, the parties and Watermaster would be released from the terms of the Agreement and a new negotiation would have to occur. As it turned out, both conditions precedent were satisfied and the Peace Agreement and OBMP Implementation Plan went into effect. Along with the significance of the Implementation Plan and Peace Agreement documents, it is worth noting the significance of the set of ideas they represented.  Chino Basin Watermaster, “Opposition to City of Fontana’s Motion to Revise Section 5 of the 2013 Recharge Master Plan Update and Restated Judgment,” filed March 14, 2014, at page 2. 56  Here are some examples. In Management Zone 1, Watermaster is to ensure physical recharge (sometimes called “wet water recharge” to distinguish it from alternative methods such as in-lieu recharge) of 6500 acre-feet per year for at least the first 5 years of the Agreement to address low groundwater levels in that area plus the land subsidence that had occurred there. The City of Pomona was given a credit against its replenishment assessments in recognition of the fact that the city built and operates an ion-exchange treatment plant for nitrate removal from the groundwater in its service area and exports the removed the nitrate from the basin. In the event of future conjunctive-use programs in the basin that involve outside entities such as MWD storing water in the basin for later recovery, any revenue from such operations shall be distributed among the Appropriative Pool and Non-Agricultural Pool. 55

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One was that in Chino Basin, everything is connected to everything else. Recharging the basin or storing water in the basin were linked with groundwater levels which were linked with land subsidence and groundwater quality and with the outflow of water from the basin to the river and downstream. Removing groundwater at the lower end of the basin in order to treat it was linked with Basin Safe Yield, the outflow of water to the river and downstream, the subsidence issue in the southwest area, and how much water could be recharged in the upper end of the basin. And so on. By the time the parties had been through the OBMP development process and the negotiation of the Peace Agreement, these interrelationships had become clearer. At the May 4, 2000 status report workshop with the Special Referee, the attorney for Cucamonga County Water District, Gene Tanaka, responded to questions from Anne Schneider and Joe Scalmanini about what might be perceived as a lack of specificity in the emerging plan and agreement about recharge facilities, where they would be located and who would do that, etc. Tanaka’s answer showed the parties’ recognition that everything was related to everything else, not just physically but financially – recharging the basin at the upper end where his client is located was connected to the operation of the desalters in the lower end, and also to who would pay how much and for what, because adding water to the basin through recharge could be used to offset the groundwater production to feed the desalter project. One of the key elements for the appropriators is that they plan to capture the recharge to pay replenishment obligation to handle the replenishment fees for the desalters, and they’re linked together. If they don’t [get additional recharge into the basin], they’ve got to pay for it. So that is a driving force to get them to go ahead and push forward with recharge, and it’s a lot cheaper than having to purchase the water later. So implicit in a lot of this is a lot of action by the parties.57

Without the desalters, recharge would be constrained because of its impacts on groundwater levels and quality, and without recharge, the groundwater extractions for the desalters would become a net loss of water and money for everyone. In this and a dozen other ways, the fates and fortunes of Chino Basin water users were linked together whether they liked it or not. Another idea that appears to have taken hold by 2000 was the notion of using knowledge and data to inform decision making and adjust action. Comments at the May 4th workshop were revealing in this regard too. Mr. Tanaka described the negotiated provisions for accounting for losses of water in storage, which were set to start at two percent (2%) per year: “And an important point,” he added,” it’s subject to recalculation according to best science.”58 More broadly, he explained that under the agreements, “Watermaster’s committee to making sure that this works from a science point of view, from an environmental point of view, and that’s what this is all about, and that’s the agreement.”59 Arthur Kidman, representing Monte Vista

 Transcript of Proceedings, May 4, 2000, at p. 43.  Transcript of Proceedings, May 4, 2000, at p. 47. 59  Transcript of Proceedings, May 4, 2000, at p. 48. 57 58

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Water District, made a similar statement: “This is the first step. It’s obvious that additional work will be required as physical things change in the basin.”60 The Peace Agreement bound the parties for a 30-year period, but not to a fixed and unchangeable management program. It bound them to an ongoing process of change.

60

 Transcript of Proceedings, May 4, 2000, at p. 45.

Chapter 10

The Changed Landscape and Chino Basin Groundwater

Abstract  This is the first in a sequence of chapters focusing explicitly on the adaptive management of Chino Basin under the OBMP and Peace Agreement. It begins with the continued urbanization process and its effects on water use, groundwater recharge, and wastewater production. These were all important drivers to which groundwater management in Chino Basin had to adapt. Another was the changes to the price and reliability of imported water supplies. Those supplies had become important elements of water supply and basin management in the second half of the twentieth century, but by the 2000s it was apparent that they were becoming uncertain as well as more expensive. One way of adapting to that circumstance was increased reliance on the reuse of treated wastewater, but that came with its own constraints and challenges. Another adaptation has been a renewed investment in facilities for stormwater capture for basin replenishment, through the implementation of a Recharge Master Plan, with periodic updates. Another adaptive management program was designed and initiated for understanding and stopping land subsidence. Together, these new endeavors illustrate the more active and adaptive approach to basin management while also highlighting how demanding it is. Keywords  California · Chino Basin · Groundwater · Urbanization · Imported water · Water reuse · Groundwater recharge · Subsidence · Chino Basin Watermaster · Inland Empire Utilities Agency

The magnitude of change in land uses, water use, and the availability of water supplies has had transformative impacts on all of Chino Basin but differential effects across subareas within the basin. Adaptive groundwater management in Chino Basin has involved much more than simply accommodating the continuing agriculture-­to-urban transition that had been foreseen in the 1970s. Groundwater management has also been altered and adjusted in order to deal with the reduced reliability of high-quality imported water from northern California, the loss of stormwater infiltration through stream channels crossing the basin, and variations in groundwater conditions across the basin including the subsidence problems in the western area (Management Zone 1). Another major change was the growing availability of recycled water, which presented an opportunity but also involved

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_10

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regulatory guidance and restrictions that affected how it could be incorporated into the groundwater management program. Adapting to this combination of problems and opportunities entailed a major redesign of groundwater recharge facilities and operations in Chino Basin. Those changes were vital components in an even larger reorientation of Chino Basin management toward greater self-sufficiency and reduced vulnerability to drought and other exigencies.

10.1  Land Use Changes and Groundwater Effects When the Chino Basin parties settled and signed the adjudication at the end of 1977 and beginning of 1978, there were still approximately 50,000 acres of undeveloped land in Chino Basin. Another 60,000 acres were being used for agriculture, and approximately 40,000 acres were in urban uses (commercial, industrial, or residential). By 1990, the undeveloped space had shrunk to 35,000 acres, agricultural use accounted for just 30,000 acres, and urban uses had swollen to 75,000 acres.1 Figure  10.1 illustrates the transformation of the Chino Basin landscape from the time of the Irvine Company lawsuit described in Chap. 4 to the 2010s. When the time had come to implement the OBMP and Peace Agreement, land-­ use transformation had hit the accelerator and was pushing it to the floor. According to a study from the California Department of Conservation, in just the 2-year period 2000–02, 23,000 acres in San Bernardino County converted out of agricultural use and 12,000 acres converted to urban use.2 In Riverside County the same 2 years, 13,000 acres were removed from agricultural use and 8000 acres became urban. A newspaper article about the study findings highlighted the speed and scale of change: Long home to the nation’s largest concentration of dairy cattle, the former 50-square-mile preserve straddling western San Bernardino and Riverside counties is rapidly being carved up into housing tracts. Planners project that more than 350,000 Holsteins will probably be replaced by more than 70,000 homes over the next two decades.3

Although it paused during the severe economic recession of 2008–10, the Holsteins-­to-­homes transition continued overall. By 2012, urban land in Chino Basin exceeded 100,000 acres and agricultural land had diminished to 10,000 acres. Remaining undeveloped land was down to 25,000 acres with a projection to shrink to 10,000 acres by 2030.4 Figure 10.2 shows the locations of the municipalities that now overlie all of Chino Basin.

 Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016.  The difference between the amount taken out of agriculture and the amount counted as urban reflects the time lag involved in property acquisition, construction design, permitting, and development. Agricultural use dropped faster than urban use increased, but eventually nearly all the former agricultural land was urbanized. 3  Daryl Kelley and Janet Wilson, “A Bumper Crop of New Homes.” The Los Angeles Times. June 15, 2004. 4  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016. 1 2

10.1  Land Use Changes and Groundwater Effects

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Fig. 10.1  Land use changes: 1933 versus 2012. (Source: State of the Basin Report 2018)

Groundwater production changed dramatically, as was anticipated in the 1978 Judgment. That year, total pumping was reported to be approximately 160,000 acre-­ feet, 55% of which was by members of the Agricultural Pool and another 39% by the Appropriative Pool. In 2000, total pumping was 179,000 acre-feet but the distribution by Pool was completely different, with the Agricultural Pool accounting for 25% and the Appropriative Pool 72%. The changes in land use and land cover, especially in the northern half of the basin between the base of the mountains and the Ontario Airport, diminished inflow to the groundwater basin in two major ways. The amount and percentage of the overlying land surface covered by buildings and impervious surfaces such as streets and parking lots grew, blocking the incidental percolation of precipitation and even irrigation applied to landscaping.5 At the time of the 1978 Judgment, impervious surfaces covered about 20% of the basin. By 1984 that had grown to 30%, then 40% by 1990 and 55% in 2012.6 5  Effects of land-use conversion on groundwater recharge – including conversion from agricultural to urban use – remain an active area of research. See, for example, Han et al. 2017. 6  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016.

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Fig. 10.2  Cities in Chino Basin and county boundaries. (Source: Chino Basin Watermaster)

In addition, during the 1980s the San Bernardino Flood Control District7 had reconstructed creek channels and lined them with concrete in order to contain flood flows and move storm water more rapidly away from people and property. Unlined, those creeks had been a primary source of freshwater infiltration into the groundwater basin. Lining them effectively eliminated stormwater recharge to the basin beginning in the 1980s.8 These changes to the landscape threatened to reduce the safe yield of Chino Basin, meaning that by the 2000s, even the amounts of pumping that were allowed under the 1978 Judgment might return the basin to overdraft conditions. Across the northern half of the basin, groundwater production remained high while groundwater recharge diminished. Across the southern half of the basin, the dynamics were quite different – almost opposite.

7  Parts of Chino Basin lie within Riverside and Los Angeles counties, but the majority lies within San Bernardino County and that area includes nearly all the creeks that cross the basin. For those reasons, even though flood control agencies in the other two counties took the same sorts of actions, the impacts of the actions by San Bernardino County Flood Control District contributed the most by far to the reduction in stormwater recharge in Chino Basin. 8  Chino Basin Watermaster, State of the Basin Report 2016.

10.2  Imported Recharge Water Gets Shaky, Goes Dry

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Storm water discharges to the Santa Ana River following rain events rose. Because more of the Chino Basin land surface was paved and creek channels were lined, as the proportion of precipitation that seeped into the ground declined, the proportion that was carried to the river rose. Meanwhile, groundwater production declined as agricultural activity began to shrink. Although urbanization was well underway by the 1990s in Chino, Chino Hills, and Ontario, it was not yet at the pace or scale of what had taken place in the north. Apart from the subsidence area in the southwestern reach of the basin (the southern portion of Management Zone 1), groundwater levels in the southern half of Chino Basin and especially to the southeast were generally high. Rising water outflow from the southern end of the basin to the Santa Ana River was increasing. In its own way, this too threatened to reduce Chino Basin’s safe yield  – there were escalating amounts of outflow from the groundwater basin to the river and little to no inflow from the river into the basin. The spatial variations in groundwater conditions emerged as an important parameter for Chino Basin management, as well as an occasional source of contention. As was made clear in the moving parties’ lawsuit in the late 1980s, in Chino Basin it matters a lot where water is put into the basin and where it is taken out. In broad terms, the spatial distribution of pumping within Chino Basin effectively reversed between the 1978 Judgment and the adoption of the OBMP and Peace Agreement in 2000. In 1978, 59% of pumping was in the southern half of the basin and 41% in the northern half. By 2000, 39% of pumping was in the southern half while 61% was to the north, due to the economic and population growth of the northern half and the reduction in agricultural activity to the south.9 The overall picture as of 2000 was the opposite of what basin users and managers would have wanted: there was less infiltration and recharge at the upper end of the basin combined with more pumping, and less pumping and more outflow at the lower end. How the outflow issue was addressed is the subject of the next chapter. The remainder of this chapter covers the combination of measures that were intended to correct the loss of recharge as well as the subsidence problem. First, though, there were three other major changes in water supply sources to which the groundwater management regime had to adapt.

10.2  Imported Recharge Water Gets Shaky, Goes Dry Phase 1 of the Recharge Master Plan, completed in 1998, and the OBMP Implementation Plan identified recharge facilities improvements to capture, retain, and restore to the basin the “native storm water” identified in the OBMP and Peace Agreement as the most preferred source of basin recharge. Long experience had shown, however, that average annual inflows to the basin from precipitation and 9  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016. This comparison uses California Highway 60 as an easily recognizable dividing line between the northern and southern halves of Chino Basin.

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runoff were generally insufficient to sustain the extent of groundwater pumping that supported the area’s population and economy. Of course, there had been and could be amazingly wet years that spurred recovery of groundwater levels, and the plan was to capture those wet-year flows more effectively and recharge them to the basin. But wet years are a phenomenon, not a strategy. History appeared to prove the necessity of supplemental water. Since the 1950s, the supplemental source around which groundwater recharge had been planned and built was imported water from the Metropolitan Water District of Southern California (MWD). MWD’s original source of imported water was the Colorado River, which is hard or “salty” water, high in total dissolved solids (TDS). Beginning in the 1970s, MWD had State Water Project supplies from northern California and that was “sweet water,” low in TDS. The availability of high-quality State Project water had encouraged the post-Judgment management approach of the 1980s: get as much of that imported water into Chino Basin as feasible to redress the decades of overdraft, and introduce better water that would blend with the local groundwater and also help push out the accumulated salts. Of course, this approach had provoked the backlash of the moving parties’ suit, and thus led over the course of many difficult years to the OBMP among other things. Nevertheless, through the 1990s, the primary source of supplemental water for Chino Basin was imported water from MWD. By the 2000s, however, the outlook for imported water deliveries had changed dramatically. The State Water Project that delivered the sweet northern California water to the Central Valley and southern California was under new and growing pressure. State Project operations changed, especially in below-normal water years, in order to leave more water in the ecologically sensitive Delta region where the Sacramento and San Joaquin rivers flow toward and into San Francisco Bay. MWD responded to this change with a number of major shifts in its plans, facilities, and operations. The district entered into storage and exchange agreements in the Central Valley to provide some buffer storage, where State Project water could be banked underground in wet years to be withdrawn and used in drier years. MWD built a major new surface reservoir in a desert valley in southern California to store surplus wet-year flows when they were available. The district also began a program of grants and subsidies to support local water treatment and storage projects that could boost the self-sufficiency of MWD member agencies and lessen their demands on MWD supplies at peak-demand periods. Even with these adjustments, though, the State Water Projects changes portended significant impacts on southern California cities and water districts. In the past, MWD regularly made surplus water available at a discounted rate for groundwater replenishment. That practice of making discounted water available for basin replenishment ended – when available, replenishment water would cost the same as water for other purposes. As if to prove the point, under drought conditions in 2007 MWD cut off replenishment water deliveries.10 Of added concern in Chino Basin was the 10

 Chino Basin Watermaster, OBMP Status Report 2008-2, p. 5.

10.3  Recycled Water to the Rescue? Yes and No

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prospect that MWD would make up at least partially for reduced State Project deliveries by increasing its reliance on Colorado River water; this might require some changes to facilities but it could be done. At the threshold of Chino Basin’s new effort to enhance groundwater recharge, it seemed entirely possible that the main supplemental water source on which people had relied in the past was about to be less dependable and possibly of poorer quality. The altered reliability of imported water became another driver of management change in Chino Basin.

10.3  Recycled Water to the Rescue? Yes and No Fortunately, in this instance, invention had preceded necessity. As imported supplies from MWD became more uncertain, a locally generated source of supply was growing. The very process of economic development and population growth that dented the infiltration of precipitation and storm water fueled increased quantities of urban wastewater. Treated wastewater quantities increased with urbanization, but initially most of this water exited the basin without being reused. Technological improvements, combined with the economic prosperity to pay for them, were making it possible to treat that urban wastewater into a reusable water supply. As noted in Chap. 9, by the end of the 1990s the Inland Empire Utilities Agency (formerly Chino Basin Municipal Water District) overlying most of Chino Basin operated four wastewater treatment plants and was planning a fifth. For years, IEUA had been encouraging the reuse of treated wastewater within its service area. By 2000 throughout southern California recycled water had come into vogue as a source of water for non-potable uses such as landscape irrigation and even indoor uses such as flushing toilets. The adoption of recycled water reuse was immensely beneficial because it allowed higher-quality water to be devoted to drinking water and other uses.11 Many new commercial developments, government building complexes, and the like were developed with dual-pipe systems to carry potable water for some uses and recycled water for others. In Chino Basin, fortuitously, IEUA was also a member agency of MWD through which imported water could be delivered when available. At the dawn of the 2000s, IEUA thus possessed a reliable output of recycled water, as well as access to imports through MWD when they were available. IEUA’s recycled water output continued to grow rapidly, and even with the expansion of non-potable uses there was the prospect that the supply might exceed the demand for non-potable water. Using treated wastewater for groundwater recharge was the next step. It was already being done nearby, where the Sanitation Districts of Los Angeles County and the Water Replenishment District of Southern  To provide some idea of the magnitude of this impact, direct (i.e., non-potable) use of recycled water in Chino Basin averages more than 20,000 acre-feet per year for uses that would otherwise be met with groundwater, stormwater, or imported water. Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2014.

11

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California partnered on the use of recycled water at the Montebello Forebay recharge basins. In fact, groundwater recharge with recycled water was being explored in so many locations that the California Department of Health Services developed regulations for it. Use of recycled water for recharge would be allowed, as long as the recycled water was blended with other water supplies. The blending rate required initially was 4:1, i.e., four parts other supply for each part recycled water. In certain respects, being able to use recycled water was an important step forward, and there is no question that its availability and use has been immensely beneficial in Chino Basin. On the other hand, recycled water still did not insulate Chino Basin from ebbs in other recharge water sources, i.e., storm water and imported water. The blending requirements meant that when storm water was scarce and MWD replenishment water was limited or non-existent due to drought conditions or other factors, the use of recycled water for recharge was throttled as well. IEUA, Chino Basin Watermaster, and a host of other water agencies throughout California encouraged the State to revise the blending requirements to allow more recycled water use, for recharge as well as other purposes. The recycled water recharge program in Chino Basin has expanded over time as those state requirements have been changed to promote greater water recycling in California.12 Even the limited use of recycled water for recharge was welcome in the short run, given the loss of storm water recharge in the 1980s and 1990s and the increased uncertainty about imported replenishment water. Together, the availability of recycled water as a recharge option and the constraint of the blending requirement added impetus to the Recharge Master Plan. The availability helped shore up the diminished dependability of imported water, making it more nearly certain that when the additional recharge facilities were built, there would be a steady water source for them that did not fluctuate with the weather. At the same time, the blending requirement meant that expanded recharge capacity would be essential in order to capture as much native runoff and storm water as possible and imported water when available, in order to have sufficient recharge water to blend with the recycled water and comply with state regulations.

 IEUA and Chino Basin Watermaster operate the groundwater recharge program with recycled water under Regional Water Quality Control Board orders R8-2007-0039 (which was revised in 2010) and R8-2009-0057. The Regional Board’s 2004 Basin Plan Amendment, described in the next chapter, “allowed for the aggressive expansion of recycled-water reuse.” Prior to 2005–06, recycled-water recharge averaged about 500 acre-feet per year; afterward, it averaged about 6000 acre-feet per year. Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2014.

12

10.4  Capturing (Rights to) More Storm Water

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10.4  Capturing (Rights to) More Storm Water During the negotiations of the OBMP and Peace Agreement, Chino Basin parties received news of what they perceived as a disturbing development. Orange County Water District had filed an application with the State Water Resources Control Board that would have removed the State’s designation of the Santa Ana River as a fully appropriated stream, and awarded Orange County Water District a permit to more than 500,000 acre-feet of increased flow in the river. The significance of this requires a brief explanation. Unlike groundwater extractions, surface water diversions and use in California are regulated through a permit system administered by the State Water Resources Control Board. When the amounts of water permitted to be withdrawn from a surface stream, such as the Santa Ana River, equal or exceed the average flow of the stream it is considered “fully appropriated” and no further permits are issued for diversions from that stream. It comes as no surprise, in light of the history recounted in Chaps. 3 and 4, that the Santa Ana River had been designated by the State Board as a fully appropriated stream. Of course, as noted above and in Chap. 9, Santa Ana River flows had grown substantially during the 1990s. In addition, Orange County Water District and two of the upper Santa Ana River watershed districts  – San Bernardino Valley Municipal Water District and Western Municipal Water District – were working with the U.S. Army Corps of Engineers on the construction of Seven Oaks Dam at the upper end of the river to impound runoff coming down the mountainsides, especially during heavy storms, for controlled releases into the river. At the end of 1999, Orange County Water District requested that the State Board remove the river’s designation as fully appropriated and issue a permit entitling OCWD to capture over a half million acre-feet of additional flow reaching Prado Dam. (OCWD, San Bernardino Valley Municipal Water District, and Western Municipal Water District argued that this did not violate the 1969 Santa Ana River Judgment, since OCWD was only requesting rights to divert newly available excess water when it was available.) To Chino Basin water agencies, this prospect was so alarming that, even in the middle of the OBMP and Peace Agreement negotiations, they agreed to dispatch a delegation to attend the hearing at the State Board in early December 1999 on Orange County’s application and protest it.13 The Chino Basin parties, represented mainly by IEUA and the Watermaster, entered into a negotiation with Orange County Water District that took place simultaneously with the completion of the OBMP Implementation Plan, Peace Agreement, PEIR, and Watermaster Board reappointment. In October 2000 the Orange County and Chino Basin interests entered into an agreement known informally as the Santa Ana River Accord.14 In simplified terms, under the accord the two sides essentially split the rights to the  Reporter’s Transcript of Oral Proceedings. November 18, 1999, pp. 31–53.  Chino Basin Watermaster. Twenty-Fourth Annual Report of the Chino Basin Watermaster, Fiscal Year 2000–01. 13 14

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increased volume of flows. The Chino Basin parties agreed to drop their protest, and to have the Chino Basin Watermaster file its own application with the State Board to appropriate a share of the increased Santa Ana River flows. The Chino Basin application focused on tributary flows coming from the creeks that cross Chino Basin before reaching the river.15 As the negotiations were being concluded the Watermaster filed an application in September 2000 to appropriate water from the river for basin recharge, and followed up in December 2000 with its own application that the State Board remove its declaration that the river was fully appropriated. State Board action was notoriously slow. Other than an order from the Board in July 2002 directing the Division of Water Rights to proceed with the application, no action was taken on Watermaster’s application for years. On September 2, 2008, the State Water Resources Control Board issued Decision 1646, conditionally approving the Watermaster application. As a result, the Chino Basin Watermaster now holds a State-issued permit to appropriate 68,500 acre-feet per year of storm water tributary to the Santa Ana River for the purpose of Chino Basin recharge. When the frantic protest and application process began in 2000, that was far more water than the Watermaster could have recharged into the basin with the existing facilities. By the time the permit was granted in 2008, however, that capability had changed substantially.

10.5  A  dding Recharge Capacity and Flexibility – The Recharge Master Plan and Chino Basin Facilities Improvement Projects The OBMP Implementation Plan included a four-page table of existing and potential recharge facilities. Most of the potential sites were existing stormwater retention ponds or flood control structures that could be modified to serve an additional purpose as groundwater recharge basins. The OBMP and Peace Agreement committed the Watermaster to complete Phase 2 of the Recharge Master Plan. (As mentioned in Chap. 9, the Phase 1 Recharge Master Plan report had been completed in 1998 as the intensive period of OBMP development began.) While work proceeded on Phase 2, the Watermaster Rules and Regulations, revised in the Spring of 2001, stated that in the meantime the table in the OBMP Implementation Plan document “shall serve as the Watermaster Recharge Master Plan until amended by Watermaster.”

 The flows in the creek channels were what could realistically be used for recharge in Chino Basin. Larger quantities of storm flows that hit the river from the upper area of the watershed and are impounded behind Prado Dam before being released to Orange County are less practicable as a recharge source for Chino Basin, since they would have to be pumped back up to the middle or northern areas of the basin for effective recharge.

15

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The recharge facilities list was ambitious – 18 sites to be added to the three that the Watermaster had been using to that point.16 If it were to be realized, two more things would be needed besides a completed Phase 2 report: money and coordination. Fortunately, money was available from the Proposition 13 water bond proceeds. The availability of the money made implementation of the facilities improvements possible, and also kept the pressure on to get the plan completed and get those funds committed to specific projects before the time, money, or both ran out. Coordination was essential too, and not merely as a good management practice. In the OBMP, Peace Agreement, and Rules and Regulations, the Chino Basin Watermaster had foresworn building and operating recharge facilities. If the Watermaster were to fulfill its recharge objectives and commitments under those documents – and therefore remain in good favor with the Court – it would have to secure and maintain the cooperation of other entities. Chino Basin Water Conservation District (Watermaster’s partner on the Recharge Master Plan Phase 1) already owned some recharge sites, so continuing that relationship would be essential. San Bernardino County Flood Control District already owned stormwater detention and conveyance facilities that captured and channeled the storm water flows that were the most coveted source of recharge water, so Watermaster would need the flood control district’s full cooperation. As mentioned already, IEUA had access to imported water and a supply of recycled water, plus it already maintained infiltration ponds at its Regional Plant No. 3. IEUA had completed and certified the PEIR under which OBMP projects could proceed and, of particular significance, IEUA was a SAWPA member agency and SAWPA had the Proposition 13 funds. Through coordination among these agencies, OBMP Program Element 2, a Comprehensive Groundwater Recharge Program, progressed significantly and rapidly. A draft of the Phase 2 Recharge Master Plan report was available in June 2001, and the final report was completed in August 2001. CEQA review of the proposed projects was initiated in 2001 and completed in 2002. The four agencies  – Watermaster, Chino Basin Water Conservation District, San Bernardino County Flood Control District, and IEUA – negotiated an agreement on project management during 2002 and formed a Groundwater Recharge Coordinating Committee to oversee and keep track of progress on project implementation. With IEUA in the lead, the four agencies launched the Chino Basin Facilities Improvement Project (CBFIP). Financing arrangements involved a 50-50 match, with the State (i.e., Proposition 13 funds) providing 50% of the funding and the IEUA and Watermaster splitting the other 50% on behalf of the local participating agencies. Because OBMP implementation was being monitored closely by the Special Referee and the Court, Watermaster filed a motion with Judge Gunn on July 2, 2002, requesting approval of the financing plan, which he granted on July 8th.  “The Etiwanda, Montclair and San Sevaine basins are currently used by Watermaster for replenishment. During the development of the OBMP, seventeen additional existing storm water retention basins and one former recycled water percolation facility were identified that could be used to meet future replenishment obligations.” OBMP Implementation Plan, June 2000, p. 14.

16

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Over the next three and a half years, the four-agency partnership worked their way through the list that had appeared in Table  1 of the OBMP Implementation Plan. The number of functional groundwater recharge sites in Chino Basin grew from three to 20, with recharge basins in all three Management Zones. Construction of the CBFIP was complete on December 31, 2005. It had cost $38 million, half of which had been provided by Proposition 13 funding and one-fourth each by IEUA and Chino Basin Watermaster. The increase in storm water recharge began in 2005. In fiscal year 2005–06, the CBFIP facilities recharged a combined 49,000 acre-feet of storm water, recycled water, and imported water into Chino Basin.17 The Chino Basin Facilities Improvement Project received a Project of the Year award from the American Society of Civil Engineers. In 2006, IEUA and the Chino Basin Watermaster agreed on a Phase 2 of the Chino Basin Facilities Improvement Project. Phase 1 had been concentrated on building new recharge facilities.18 Phase 2 focused on making additional improvements at several of the recharge sites, enhancing technical capabilities for directing flows to the sites and monitoring recharge quantities, and extending pipelines to some of the MZ-3 sites from MWD’s new Rialto-Corona Feeder. The agencies secured another grant from the California Department of Water Resources, drawing upon funds made available from the passage of Proposition 50, once again matching 50% from the State with 25% each from IEUA and Watermaster. Phase 2 construction was completed in 2009, at a cost of $10.5 million. Among other things, the completion of Phases 1 and 2 of the Chino Basin Facilities Improvement Project meant that recharge can occur on a 12-month basis now.19 Recycled water recharge had grown from about 500 acre-feet per year prior to the improvements to 6000 acre-feet per year with them.20 Recycled water is generally available throughout the year, storm water is available when the weather cooperates, and imported water for replenishment is available whenever MWD has it to sell.21 These water sources can be directed to basins in each Management Zone depending on availability and need and to maintain compliance with blending requirements.

17  Chino Basin Watermaster, 2007 Supplement to the Implementation Plan Optimum Basin Management Program for the Chino Basin. October 25, 2007. This document was also Attachment D to Watermaster Resolution 07-05. 18  To clarify, Phase 1 and Phase 2 of the Chino Basin Facilities Improvement Project (CBFIP) are different from Phase 1 and Phase 2 of the Recharge Master Plan. As mentioned earlier, Phase 1 of the Recharge Master Plan had been completed in the 1990s. Phase 2 of the Recharge Master Plan was implemented by means of the added facilities in Phase 1 of the CBFIP plus the facility improvements in Phase 2 of the CBFIP. 19  Recharge basins are normally taken out of use periodically so that silt can be removed from the bottom and the percolation rate kept high. With enough recharge basins, maintenance can be rotated so that there are always basins available to receive water. 20  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2014. 21  Chino Basin Watermaster, OBMP Status Report 2008-2, p. 5.

10.6  The 2010 Recharge Master Plan Update and 2013 Amendments

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10.6  T  he 2010 Recharge Master Plan Update and 2013 Amendments Despite these substantial gains, there remained more to do. Groundwater levels in Management Zone 3 had declined, indicating that recharge and pumping were not yet in balance there and some additional recharge capacity would be needed. The Peace Agreement commitment to recharge at least 6500 acre-feet per year for 5  years in Management Zone 1 was coming to an end in 2006 but MZ-1 parties wanted to see it continue. And, as always, there were the desalters – desalter capacity was expanding, and further increases in recharge could help offset the increased pumping for the desalters. Last but not least, in 2008, Watermaster received that permit from the State Board to recharge up to 68,500 acre-feet of storm water per year, and total recharge capacity in the basin even with CBFIP Phases 1 and 2 completed stood at 49,000 acre-feet per year. Although most years would not bring close to the amount of storm water covered by Watermaster’s permit, Chino Basin managers wanted to be able to get as much storm water underground as possible if and when those quantities arrived. The Recharge Master Plan Update which was begun in 2008 and completed in 2010 envisioned nearly a doubling of recharge capacity, to 96,000 acre-feet, along with an added dimension to recharge management known as “preemptive replenishment.” The general approach to basin replenishment since the 1978 Judgment had been to replenish what parties used in excess of their allocated rights – basically, making up for over-production. Replenishment was therefore a rather steady operation; parties’ total over-production did not vary too much from year to year, therefore, as long as there was enough capacity to replace that amount each year things were fine. As described earlier, in the 1970s and 1980s this replenishment was generally accomplished by purchasing a few thousand acre-feet of imported replenishment water each year from MWD and directing it to the recharge basins. Later, as imported replenishment water became more variable, recycled water helped to bridge the gap. By the end of the 2000s, Chino Basin Watermaster, IEUA and the other stakeholders were looking at the variability of both imported replenishment water from MWD and storm water and developing a revised approach. The essence of the change was to over-size recharge facilities beyond what would be needed for regular annual replenishment or even for recharge of recycled water. The new approach would be to capture recharge water when it was available, even in amounts greater than needed in that particular year. Hence the nickname “preemptive replenishment” – in any given year Watermaster might be putting more water into the basin than needed for replenishment, but the water would undoubtedly be needed for replenishment one day. In the meantime, Watermaster could keep a replenishment account that could be added to or subtracted from based on the comparative magnitudes of recharge and pumping each year. Judge Gunn approved an outline of the Recharge Master Plan Update in 2008, with a deadline for completion in 2010. Work on the Recharge Master Plan

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Update – known as the 2010 RMPU – continued through 2009 and into 2010. The 2010 RMPU was approved by the Watermaster Advisory Committee on June 17, 2010, and by the Watermaster Board on June 24, 2010. It was also supposed to be approved by IEUA prior to filing with the Court, but an issue developed and IEUA took a different position. IEUA supported Watermaster going ahead and filing the 2010 RMPU with the Court, in order to maintain compliance, but withheld its own signing of the Update until IEUA’s projections of future water demands could be reconciled with Watermaster’s. What happened with the 2010 RMPU demonstrates that, even when scheduled updates are part of an adaptive management program, it can still be important to retain some flexibility. During 2008–2010, several relevant things had changed. • The 2008–2010 economic recession changed forecasts of economic activity, housing development and population growth in the region. • The State of California enacted stricter water conservation requirements in 2009, which affected forecasts of water use. • The State also enacted changes to its requirements for stormwater retention on development project sites, which affected both stormwater runoff and incidental recharge through infiltration. • The State postponed the deadline for 2010 Urban Water Management Plans submitted by public water service providers to June 2011, and those Urban Water Management Plans are an important source of data on water demand projections. In light of these changes, IEUA communicated to Watermaster its concern that the water demand projections in the 2010 could be too high and therefore the recharge expansion projects identified in the 2010 RMPU may not all be needed. IEUA reiterated its commitment to implementing recharge facility improvements together with the Watermaster but wanted to wait until after the 2010 Urban Water Management Plans had been submitted in the summer of 2011 and were reviewed by Watermaster and IEUA staff and consultants.22 At that point, IEUA stated, the two agencies could move forward with an implementation plan of projects. Watermaster submitted the 2010 RMPU to the Court without an implementation plan, and explained that Watermaster intended to amend the RMPU after the review of Urban Water Management Plans and the incorporation of any other information that would affect the list of recharge improvement projects. The 2010 RMPU was approved in this form on October 8, 2010.23

 Letter from Jean Cihigoyenetche, attorney for IEUA, to Michael Fife, attorney for Chino Basin Watermaster, June 22, 2010. 23  It is relevant to note here that these processes took place with a new judge at the helm. Judge Gunn retired in 2008 and his immediate successor, Judge Wade, presided over the Chino Basin case for one year before he too retired. In September 2009, the Court’s continuing jurisdiction over the Judgment was reassigned to Judge Stanford E. Reichert. In this, the Chino Basin parties were fortunate: Judge Reichert had once been an assistant to Judge Gunn, and remained with the case for over a decade. 22

10.6  The 2010 Recharge Master Plan Update and 2013 Amendments

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In the meantime, the benefits of the recharge capacity expansion that had been completed through CBFIP Phases 1 and 2 were demonstrated in the very wet winter of 2011. That year, Watermaster and IEUA were able to recharge over 34,000 acre-­ feet: 16,847 acre-feet of storm water, 8010 acre-feet of recycled water, and 9465 acre-feet of imported MWD water.24 The next year, because of the wet conditions in 2011, MWD had additional replenishment water available to sell, and IEUA and Watermaster recharged 23,500 acre-feet of imported State Project water to the groundwater supply.25 This was the beginning of “preemptive replenishment” – in 2011 and 2012, about 32,000 acre-feet of the imported water recharge was considered preemptive replenishment.26 Other good news came from the Regional Water Quality Control Board which revised its dilution requirements for recharge with recycled water in 2010, allowing IEUA and Watermaster to increase recycled water recharge in subsequent years when storm water and imported water were limited.27 The increases in groundwater recharge from 2006 through 2017, and the varying mix of recharge water sources, are shown in Fig. 10.3. Work on the amendments to the 2010 RMPU proceeded through 2011 and 2012, with an RMPU Steering Committee of stakeholders engaged in the reassessment of

Fig. 10.3  Recharge in Chino Basin 2006–2017. (Source: Chino Basin Watermaster)

 Chino Basin Watermaster, OBMP Status Report 2011-1.  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016. 26  Wildermuth Environmental Inc. memo to Chino Basin Watermaster on Watermaster compliance with the 2010 RMPU, October 31, 2017. 27  For example, in 2015–16 when drought conditions were severe and there was almost no stormwater runoff or imported replenishment water, IEUA and Watermaster were still able to recharge 13,200 acre-feet of recycled water. Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016. 24 25

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water demand projections plus other aspects of recharge planning, including evaluative criteria for determining the locations where additional recharge was most needed and would provide the greatest benefits. In 2013, the amendments to the 2010 RMPU were finalized, approved by both Watermaster and IEUA, and presented to the Court. For convenience, the 2013 amendments to the 2010 RMPU are often referred to as the 2013 RMPU. The 2013 RMPU included a list of five projects for expanding recharge capacity across the Management Zones. Those projects were constructed between 2015 and 2020. The next RMPU was due in 2018. By that time, Chino Basin Watermaster had access to an estimated 87,000–115,700 acre-feet per year of recharge capacity  – 56,600–70,200 acre-feet in spreading basin capacity, 5500 acre-feet in Aquifer Storage and Recovery wells, and 25,000–40,000 acre-feet of in-lieu recharge through arrangements with producers for reduced pumping in exchange for other water deliveries. The locations of the groundwater recharge facilities in Chino Basin are shown in Fig.  10.4. The 2018 RMPU Steering Committee concluded that no additional recharge projects were needed before the next RMPU would come around in 2023. Twenty years had passed since the Phase 1 Recharge Master Plan report and, at least for a while, Chino Basin had all the recharge capacity it needed.

10.7  Tackling the Subsidence Problem The OBMP Implementation Plan and Peace Agreement had committed Watermaster to assuring at least 6500 acre-feet per year of recharge in Management Zone 1 (MZ-1) along the west side of Chino Basin, where the subsidence and ground fissuring occurred. Watermaster agreed to continue this commitment beyond the 5-year initial period, and that recharge obligation remains in place. The program for addressing MZ-1 subsidence involves much more than recharge.28 It also reflects the adaptive groundwater management approach adopted in Chino Basin since 2000. Even after the 1978 Judgment had limited groundwater pumping, groundwater levels had continued to decline in MZ-1. Some fissuring had appeared as early as 1973 but it had not affected any infrastructure. The 1991 fissuring in Chino did, which is one of the reasons it prompted much greater attention.29 At the end of the 1990s, tackling the MZ-1 subsidence problem was incorporated in the OBMP Implementation Plan as Program Element 4. In 1999, the OBMP Phase I Report had identified pumping-induced decline of piezometric levels and subsequent  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2018.  The particular subsidence problem in MZ-1, known as differential subsidence, may be due to the fact that the San Jose Fault runs through MZ-1 and there may be differences in soil composition and density on the sides of the fault that cause soil compaction to proceed at different rates when groundwater is removed. Horizontal differential subsidence may be manifested by fissures that open as the underlying dewatered soils settle at different rates, pulling the overlying land surface apart.

28 29

10.7  Tackling the Subsidence Problem

181

Fig. 10.4  Recharge facilities in Chino Basin. (Source: State of the Basin Report 2018)

aquifer-­system compaction as the most likely cause of land subsidence and ground fissuring observed in MZ-1; however, the OBMP Implementation Plan acknowledged that there was uncertainty about this and more information would be needed in order to identify and distinguish between hypothesized causes. Watermaster staff and Wildermuth had collected synthetic aperture radar interferometry (InSAR) data – a method for determining ground elevations – for 1992, 1994, 1996, 1998, and 2000 and completed an analysis of the data in May 2001. Based on those data plus an analysis of groundwater levels and other information about the underlying hydrogeology, Wildermuth and Watermaster designed a ground level survey layout so that the InSAR data and the ground level survey data could be compared for cross-verification. During 2000 and 2001, Watermaster staff and representatives from the cities of Chino and Chino Hills and the State of California (which owns land adjacent to the

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cities and where the earlies fissuring had been noticed) discussed how to put an interim set of measures in place while developing a longer term plan. The interim steps included reduced pumping from the deeper aquifer zone30 by the cities and the State in exchange for replacement water deliveries from, among other sources, the new Chino Desalter that began operating in 2001. The interim measures also included the installation of a multi-depth piezometer to measure hydraulic pressure in the aquifer at different depths, and an extensometer, an instrument that can be placed underground to measure ground movement.31 A second extensometer was added in Ayala Park in the City of Chino in 2002. Since its initiation in 2000–01, adaptive management of the subsidence issue has consisted of (1) minimizing subsidence and fissuring in the short term, (2) collecting and analyzing information to understand the extent, rate, and processes of subsidence and fissuring, (3) developing and implementing a management program to reduce and if possible abate any further subsidence and fissuring, (4) monitoring the outcomes of the management actions and expanding data collection if needed, (5) modifying the management actions if needed. This adaptive management program was designed under the supervision of the Court and the Special Referee, because the MZ-1 subsidence issue was Program Element 4  in the OBMP. An interim subsidence management plan was submitted to Judge Gunn on June 7, 2002. Special Referee Anne Schneider held a workshop on the interim plan for the Court on August 29, 2002. Some parties overlying parts of MZ-1 – specifically Monte Vista Water District, Cucamonga Valley Water District, San Antonio Water Company, and Fontana Union Water Company – objected that the interim plan focused too narrowly on the southern end of the Management Zone. Land subsidence had occurred in the northern half of MZ-1 too, although fortunately without the dramatic appearance of ground fissures. The MZ-1 interim plan and the subsequent final plan were broadened to encompass all of MZ-1, focusing on what it named the Managed Area around the fissuring site in the southwestern area of MZ-1, and the rest of MZ-1 identified as a Northeast Area, a Northwest Area, and Central Area, and a Southeast Area. Development of the Subsidence Management Plan – sometimes also referred to as the MZ-1 Plan – also occurred with close and continued engagement of stakeholders on what was composed initially as the MZ-1 Technical Committee and later became the Ground Level Monitoring Committee. The Ground Level Monitoring Committee continues to meet quarterly to review the progress of the management plan and the monitoring results, and produces an annual report that is presented to

 In this area the underground water is separated by a layer of less permeable soils into a shallower zone and a deeper zone. Such a layer is known as an aquitard because it limits vertical movement of water between the aquifer zones. Aquitards are commonly composed of finer and denser soils such as clay through which water passes much more slowly than it does through coarser sand and gravel soils. 31  Chino Basin Watermaster, Twenty-Fourth Annual Report of the Chino Basin Watermaster, Fiscal Year 2000–01. 30

10.7  Tackling the Subsidence Problem

183

the Pool Committees, Watermaster Advisory Committee, Watermaster Board and the Court. The implementation of the interim Subsidence Management Plan was followed with 2 years of data collection and analysis that were presented in an MZ-1 Summary Report in October 2005. The information collected from wells in the Managed Area, the extensometers, InSAR data and ground level survey led to the development of Guidance Criteria. The principal Guidance Criterion involved limiting pumping in the Managed Area to quantities that would keep the groundwater levels above an index or target level at the Watermaster’s piezometer in Ayala Park in the City of Chino. Monitoring indicated that, even with the interim measures, subsidence in the Managed Area had slowed considerably. This added credibility to one of the theories about how the subsidence in the area had occurred. One of the puzzles was the apparently delayed or lingering nature of the subsidence: pumping in the area had curtailed with the 1978 Judgment, but subsidence continued for years afterward. Now it appeared to have stopped or nearly so. One explanation that could tie these observed effects together was that earlier pumping in the deeper aquifer zone had created negative pressure within that zone which caused a slower dewatering of the finer and denser soils that separated the deeper and shallower zones.32 The compaction of those finer soils eventually manifested as subsidence of the overlying land, but the effect was delayed. Subsequently, with reduced pumping in the deeper zone, that dewatering phenomenon slowed. If pumping from the deeper zone were maintained at amounts that would keep the piezometric level above the Guidance Level, it might be possible to avoid a resumption of the dewatering, compaction, and subsidence in the Managed Area. The interim plan and the Guidance Criteria were developed into a permanent Subsidence Management Plan (MZ-1) Plan that was adopted by the Watermaster parties and approved by the Special Referee and the Court in 2007. Periodic “stress tests“ have been conducted during which wells in Chino Hills are pumped at rates fast enough to draw levels at the index well below the Guidance Level, while other water is injected under pressure at another well, and the response of the subsurface soils and deeper aquifer zone are observed using the piezometers and extensometers in the area. In addition, the combination of monitoring ground level survey and InSAR data along with piezometer and extensometer readings has continued. The results have been encouraging – subsidence has slowed to nearly imperceptible levels in the Managed Area since 2000 and ground levels remain relatively stable year to year. In some years there is no change in ground levels at all. In the northern half of MZ-1, however, differential land subsidence continued, threatening the possibility of infrastructure damage and ground fissuring there too. In 2015, the Subsidence Management Plan was updated to add the Northwest MZ-1 Area as a second managed area. An extensometer has been installed in the City of

 This hypothesis is mentioned in Lofgren 1971 and in Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2018.

32

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Pomona to provide more data on ground motion, more benchmarks have been installed to refine the ground level survey measures, and groundwater production and levels at Pomona and Monte Vista Water District wells have been monitored more closely with newly installed equipment in order to enhance the information available about the extent and dynamics of the subsidence area there. That monitoring continues, and Guidance Criteria or other management actions will depend on the findings and analysis. Subsidence has occurred but at lesser rates and amounts in the Northeast, Central, and Southeast Areas of MZ-1. Monitoring and reporting continues for each of those areas as well. Adding recharge capacity and arresting subsidence have been two clearly important goals of the basin management program in Chino Basin. Experience taught that it is possible to have water levels get too high in parts of the basin, however, and that attention to groundwater quality can be just as important as bringing in more water. In addition, the OBMP Implementation Plan, Peace Agreement, and 2010 RMPU also emphasized the need to pay attention to different issues in different parts of the basin. Balancing these considerations required another set of actions and projects that involved operating the basin differently, to change the distribution of groundwater levels and flow. Once again, the desalters would be both the solution and the problem.

Chapter 11

Changing the Flow

Abstract One critical and ongoing challenge of groundwater management in Chino Basin has been balancing on one hand the need and desire to avoid excessive groundwater depletion and, on the other hand, the need to avoid exporting excessive and/or poor quality water from the basin and creating negative impacts on the Santa Ana River and water users downstream. Groundwater quality throughout the watershed is regulated by the Santa Ana Regional Water Quality Control Board. In the 2000s, Chino Basin parties, led by the Chino Basin Watermaster and Inland Empire Utilities Agency, negotiated with the Regional Board to design a new approach to basin management known as Hydraulic Control. This management concept involved adjusting groundwater levels within the basin to limit the outflow of poorer quality groundwater, increasing the extraction, treatment, and reuse of degraded groundwater, and enlarging the reuse of treated urban wastewater for groundwater recharge. Building, financing, and expanding the groundwater treatment facilities – known as “desalters” – and reaching agreement among the Chino Basin parties about how to lower groundwater levels in part of the basin, maintain groundwater levels in the rest of the basin, and allocate the costs and benefits of the new management approach led to the negotiation and adoption of “Peace II,” a set of additional agreements added to the earlier Peace Agreement. Keywords  California · Chino Basin · Groundwater · Desalters · Western Municipal Water District (WMWD) · Chino Desalter Authority (CDA) · Hydraulic Control · Basin Re-Operation · Regional Water Quality Control Board · Basin Plan · Peace II · Chino Basin Watermaster · Inland Empire Utilities Agency

From the 1930s through the 1960s, increased water use in Chino Basin and the rest of the upper Santa Ana River watershed had triggered lawsuits from the lower area, i.e., Orange County. Any reader might reasonably presume that the continued, and even accelerated, development in the upper area since the 1970s would worsen the problem of diminished flows. Instead, the opposite occurred for a combination of reasons. The 1969 Santa Ana River Judgment worked – the Upper Area met its obligation of usable water flow to the Lower Area through Prado Dam, as monitored and reported by the Santa Ana River Watermaster. Flows to the Lower Area remained

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_11

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fairly stable during the 1970s and 1980s. After that, they increased due to factors covered in the preceding chapter. Storm flows reaching the river increased because of the hardscaping of the Upper Area, wastewater discharges to the river and its tributaries increased with population growth and economic activity in the upper area, and agricultural pumping in the southern half of Chino Basin above Prado Dam began to decrease in the 1990s and dropped after 2000. By 1983, Santa Ana River flow leaving Chino Basin at Prado Dam surpassed 100,000 acre-feet per year and remained above that level for the next 27 years with one exception in 1994.1 Although on first thought increased river flow seems to be a good thing, it had some drawbacks. As mentioned in Chaps. 8 and 9, the increased volume of storm water flowing periodically across the upper area caused incidents of damage to the lower-area dairies and other agricultural properties. In addition to being costly to those property owners, these incidents produced surges of water laden with manure and other pollutants reaching the river. Apart from the storm events, the increased annual flow in the river was composed almost entirely of wastewater discharges from the urbanized portions of the upper watershed area. Generally speaking, this is not a problem except perhaps from a perception standpoint; in every developed and populated watershed on the earth, downstream communities are the recipients of upstream water users’ discharges whether they like to think about it that way or not (most of us do not). The potentially problematic aspects are: (1) as mentioned in Chap. 10, treated wastewater discharges tend to be higher in TDS than the native unused water would be, and in a watershed where water is withdrawn, treated, used, treated again, and discharged along a chain of communities from the headwaters on down, the TDS accumulates with each cycle of reuse; and (2) although wastewater treatment plants are designed, operated, regulated, and maintained to meet discharge water quality standards reliably, the small residual risk of a malfunction increases with the number of upstream treatment plants. Orange County, in the lower area of the Santa Ana River watershed, is situated below several wastewater treatment plants. Within Chino Basin itself there was an additional and significant problem associated with the escalating outflows to the river. From a Chino Basin perspective, it was lost water. Any water in excess of what the 1969 Judgment required the Upper Area to send downstream was, in that sense, wasted. Whether it was the highly variable storm flows or the steady output of treated wastewater, it was a potentially usable resource. Furthermore, water lost at the lower end of Chino Basin would need to be offset elsewhere in the basin by recharge, which was expensive especially when the primary source of supplemental recharge water had been MWD imports. In the 1980s, paying to bring supplemental water to the northern half of the basin while losing water from the southern half of the basin might have struck some as a good idea, but by the 2000s it seemed like a really bad idea. There were additional related concerns. One was that Orange County Water District filed an application with the State Water Resources Control Board to increase its claim to the water coming from the upper area, which, as Chap. 10

 Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016.

1

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explained, prompted consternation and counter moves from Chino Basin actors. Another was that the Regional Water Quality Control Board was still very much on the case. The Regional Board staff were pleased by the adoption of the OBMP and Peace Agreement in 2000 and the construction of the first desalter, as well as the manure removal and composting programs. But pleased is not the same as satisfied and progress is not the same as compliance. The water reaching the Santa Ana River from Chino Basin at the beginning of the 2000s was still degraded, and had started arriving in greater amounts. The Regional Board continued to press the dairies, the Watermaster, and the Inland Empire Utilities Agency for water quality improvement, and now with a new question  – whether the growing outflow of degraded water from Chino Basin could be arrested. One more related concern to Chino Basin lay in the foreseeable future. As noted in Chap. 10, the combination of diminished stormwater infiltration in the northern half of the basin with increased rising water outflow from the southern half was in effect an overall diminution of safe yield. The basin’s sustainable safe yield – what was available for extraction year after year – would be smaller under these changed circumstances. The 1978 Chino Basin Judgment allowed for a redetermination of the Basin Safe Yield after the first 10 years, which by the 2000s had long passed. Moreover, the OBMP and Peace Agreement called for a recalculation of the Basin Safe Yield to be made in 2010–2011 based on the 10-year period from 2000–2001 through 2009–2010  – i.e., the period that had begun already. Based on current trends, Chino Basin Watermaster and the Pool and Advisory Committees had every reason to expect that the safe yield recalculation to which they had committed would result in something less, and perhaps much less, than the 140,000 acre-feet per year under the original Judgment. Any reduction in the Basin Safe Yield would have predictable and negative knock-on effects. With a lower safe yield, maintaining the current levels of pumping would increase the amount of replenishment water that Watermaster would have to secure and the parties would need to pay for (at least those in the Appropriative and Non-Agricultural Pools). Besides, the general expectation was that pumping would increase with further economic and population growth. On top of that, if additional desalter facilities were built and operated  – as the OBMP envisioned and the Regional Board desired – the amount of groundwater extracted to feed the desalters would have to increase. A lower Basin Safe Yield figure combined with increased pumping for the desalters would almost certainly boost the replenishment obligation for the desalters that would be paid by the appropriators if it could not somehow be offset by other means.

11.1  T  he 2004 Basin Plan Amendment and “Hydraulic Control:” Fixing the Leak and Cleaning the Basin It was hardly the apocalypse and it had not yet arrived, but this combination of prospects on the horizon occupied the minds of Watermaster parties and staff, Regional Board staff, IEUA and other SAWPA leadership, and Mark Wildermuth. Although

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it may not be possible to pinpoint the exact moment or conversation of its inception, an idea emerged that reoriented Chino Basin management: perhaps recharge, reuse, and pumping could be reconfigured in such a way as to keep Chino Basin groundwater within Chino Basin and, as much as possible, away from the river. The idea gained a name, “hydraulic control.” The idea and the term were hatched during the OBMP negotiations. Years later, Scott Slater credited Wildermuth with it. In any case, the Chino Basin Watermaster annual report for fiscal year 1999–2000 indicated that a Comprehensive Monitoring Report was being prepared: “Its purpose is to demonstrate hydraulic control and beneficial use based objectives. Upon completion, the Report will be submitted to the Regional Water Quality Control Board.”2 The following year’s annual report referred to it as the “Hydraulic Control Study.” The concept of hydraulic control in Chino Basin, and the mix of projects and actions it entailed, was modified and refined over the next 15  years, but its core remained consistent: coordinating the multiple intersecting aspects of basin use and basin management in ways that would protect the downstream users from increasing inflows of poorer quality water from Chino Basin, provide water users within Chino Basin with as much usable water as possible under the circumstances, and protect the basin’s safe yield to the greatest extent practicable. This would involve coupling the recharge improvements described in Chap. 10, that allowed larger amounts of better-quality water to enter the basin when it was available, with increased pumping from the southern end of the basin to offset the loss of agricultural pumping and interrupt the subsurface flow of groundwater toward the river. Pursuing that set of objectives would require a great deal of collaboration within the basin plus considerable support and cooperation from the other agencies in the watershed and the Regional Board. In the early 2000s, the Santa Ana Regional Water Quality Control Board was gearing up for the next round of amendments to its Regional Water Quality Control Plan, the “Basin Plan” that governs water quality in the Santa Ana River watershed. Beginning with the launch of the TIN/TDS study in 1995, the Regional Board had been searching for an improved water quality control strategy for the watershed.3 Chino Basin remained at the center of the Regional Board’s attention in this regard. Chino Basin’s impacts on the river were an important focus for the Regional Board, but so was the quality of water within Chino Basin itself for beneficial uses such as drinking water and sanitation, commercial and industrial use, and irrigation. For these reasons, the Regional Board strongly favored groundwater treatment in the basin, i.e., desalters. Recycled water reuse was an additional consideration and concern. The growth of recycled water reuse might be good thing from a water supply standpoint, but the

2  Chino Basin Watermaster, Twenty Third Annual Report of the Chino Basin Watermaster, Fiscal Year 1999–2000. 3  One of the “Peace II” documents, which are discussed below, drew this connection directly, stating that the TIN/TDS “study culminated in the Regional Board’s adoption of the 2004 Basin Plan Amendment in January 2004.” Chino Basin Watermaster, Project Description for the 2007 Amendment to the Chino Basin Optimum Basin Management Program, Attachment A to Watermaster Resolution 07-05, at p. 1.

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Regional Board’s emphasis is water quality. As noted above, the increasing amounts of recycled water being produced and used (some of it, at least) in Chino Basin had water quality implications. The existing Basin Plan for the Santa Ana Region restricted the use of recycled water for irrigation or groundwater recharge and included anti-degradation objectives for TDS. Those TDS objectives – which ranged between 220 and 330 milligrams per liter (mg/L) across Chino Basin – were in most areas lower than the TDS levels of the groundwater in Chino Basin already. Increased reuse of recycled water, which tended to have TDS of 400  mg/L or above, was impossible under the then-current Basin Plan unless the recycled water were subjected to even more treatment. If the Regional Board were to require additional levels of recycled water treatment, the financial impact might cripple the efforts within the basin to encourage reuse. An inability to expand recycled water reuse would significantly limit other aspects of the OBMP such as expanding recharge. It could also exacerbate the problem of increased outflow from Chino Basin since whatever recycled water was not used within the basin would just get discharged to the river. During 2002, the Watermaster and IEUA leadership and Wildermuth began a dialogue with the Regional Board leadership which continued through that year and the next.4 Hydraulic control was presented, discussed, and negotiated over in those conversations. Pursuing and attaining hydraulic control  – keeping Chino Basin groundwater inside Chino Basin – could provide the Regional Board with two of its three most important goals for Chino Basin. It could reduce the outflow to the river and thus the downstream water quality impacts of that outflow, which was important to the Regional Board. One of the ways it could achieve that outcome was by expanding the number and size of the desalter facilities extracting polluted groundwater from the southern end of Chino Basin – another important goal of the Regional Board. Expanded desalters meant increased pumping in that area, with the removed brine exported through the SAWPA interceptor and thus kept out of the river. If pumping for the desalters were increased enough, it could arrest the rising water outflow from Chino Basin – thus cleaning up the groundwater and fixing the basin’s leak to the river. Doing this, however, would require increased reuse within Chino Basin – reuse of the recycled water from the treatment plants and reuse of the treated water produced by the desalters. Otherwise, outflows of water that exceeded the TDS and nitrate objectives in the Basin Plan would continue. But allowing reuse of the treatment plant and desalter output would almost certainly mean that TDS and nitrate within Chino Basin would remain above the Basin Plan objectives. Gradually and eventually, the water quality within Chino Basin would improve due to removal and treatment of the degraded groundwater plus increased recharge with storm water and State Project water when it was available. Until then, TDS and nitrate were likely to stay high, and they might even rise somewhat in the short term.5  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016.  This could happen for two reasons. First, use of the recycled water would probably rise faster at first while the effects of increased stormwater and imported water recharge would take a while to have broad effects on water quality. Second, the soils in the vadose zone through which recharge 4 5

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The case made by IEUA and the Watermaster to the Regional Board was that if the Regional Board were willing to allow some leeway on one of its three goals – TDS and nitrate levels within Chino Basin – for a while, the desalter expansion and increased recycled water reuse would advance the Regional Board’s other goals of improving water quality in the Santa Ana River and groundwater treatment in Chino Basin. That leeway would involve amending the Santa Ana Region’s Basin Plan to include a set of “maximum benefit objectives” for TDS and nitrate concentrations inside Chino Basin. The term “maximum benefit” echoed the language of the California Constitution, which states that the water resources of the state should be used for the maximum benefit of the people and that waste or unreasonable use of water is to be avoided. State agencies, included the Regional Water Quality Control Boards and the State Water Resources Control Board, are supposed to carry out that mandate. IEUA and the Watermaster argued that continuing to send potentially usable water out of the upper watershed and down the Santa Ana River to the ocean, imposing negative water quality impacts along the way, seemed more like waste and unreasonable use rather than using water for the maximum benefit of the people of California. Reusing that water within Chino Basin was less wasteful and more protective of the river and downstream users. They added that increasing reuse within Chino Basin could also help reduce its dependence on imported water from northern California, and that could help somewhat with the difficult Delta issues the State Board was trying to address. The Regional Board agreed to accept the hydraulic control approach that promised desalter expansion in Chino Basin and improved water quality in the river.6 In January 2004, the Regional Board issued a Basin Plan Amendment7 (which is usually referred to simply as the “2004 Basin Plan”). On the one hand, it contained tighter anti-degradation objectives for TDS in Chino Basin, ranging between 250 and 280 mg/L. However, it also provided “maximum-benefit objectives” that could be used subject to various conditions. The overall maximum-benefit TDS objective for Chino Basin was set at 420  mg/L.  The maximum-benefit TDS objective for recycled water was set at 550 mg/L both for reuse or for discharge consistent with

water would pass were likely contaminated with nitrates and other constituents that would desorb from the soil and be adsorbed to the water molecules. It might be a long time before the legacy contamination gave way to water quality improvement, and initial water quality sampling might yield discouraging results for a while. The difference between these observations and the “dilution solution” presented on behalf of Chino Basin Municipal Water District back in 1989 (see Chap. 7) was that in 2002 IEUA and Watermaster were proposing to combined recharge with an active program of groundwater extraction and treatment by means of the desalters. 6  Chino Basin Watermaster, Thirty-Third Annual Report of the Chino Basin Watermaster, Fiscal Year 2009–10; also, Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2014. 7  Santa Ana Regional Water Quality Control Board Order R8-2004-0001.

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IEUA’s discharge permit.8 These new objectives would allow for a significant increase in the reuse of treated water within Chino Basin, which would facilitate the attainment of hydraulic control, and progress toward and attainment of hydraulic control was a condition of keeping the new objectives in place. Since at the time hydraulic control was an untested hypothesis based entirely on logic combined with modeling, the Regional Board imposed a lot of conditions on the new maximum-benefit objectives. These “Chino Basin maximum-benefit commitments”9 ordered by the Regional Board and accepted by IEUA and Watermaster included: • Basin-wide water quality monitoring of surface and groundwater, with quarterly reports to the Regional Board; • Collaboration with other upper-area agencies on a recomputation of TDS and nitrate concentrations in the upper area of the watershed every 3 years, reported to the Regional Board; • Balancing recharge water sources to keep the total water used for recharge within the 420 mg/L objective; • Plans and schedules for water-quality improvement actions to be taken in case TDS exceeds the maximum-benefit objective; • Plans and schedules for water-quality improvement actions to be taken in case recycled water use exceeds IEUA’s recycled water discharge and reuse permits; • Completion of the planned expansion of the first desalter, known as Chino I; • Construction of the planned second desalter, Chino II; • Addition or expansion of desalters to an ultimate operating capacity of 40,000 acre-feet per year; • Attainment of hydraulic control, defined as either the elimination of groundwater discharge to the river or reduction to less than 1000 acre-feet per year. The Regional Board issued follow-up orders in 2005, in response to plan submissions from IEUA and Watermaster regarding the maximum-benefit commitments. For example, Order R8-2005-0064 approved the submitted water quality monitoring program as satisfying that commitment. Order R8-2005-0033 directed the Chino Basin Watermaster to implement the steps necessary to attain hydraulic control. Hydraulic control was no longer a concept; it was a mandate.

11.2  The Desalters By the end of the 1990s it was clear that, although “[m]itigating the loss of yield and the subsequent degradation of water quality would come with high costs,”10 the one thing worse than building and operating an expensive set of groundwater treatment

8  Chino Basin Watermaster, Project Description for the 2007 Amendment to the Chino Basin Optimum Management Program. Attachment A to Watermaster Resolution 07-05, at p. 1. 9  Santa Ana Regional Water Quality Control Board Order R8-2004-0001, pp. 54–61. 10  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016.

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facilities in Chino Basin was not doing so. As described in Chap. 8, construction of the first desalter began in September 1998 amid the fight over Chino Basin governance. That desalter, located across Euclid Avenue from the Chino Airport in the southwestern portion of the basin, began producing treated water in 2001 from groundwater extracted by a series of wells extending to the east. As designed and built, the desalter had a capacity of approximately 8 million gallons per day (mgd) or roughly 9000 acre-feet of treated water production per year. The brine composed of the removed salts was disposed into SAWPA’s Inland Empire Brine Line, and the treated water was delivered initially to the growing cities of Chino and Chino Hills to allow them to reduce groundwater pumping. In its first year, the desalter produced 7989 acre-feet of treated water.11 The OBMP Phase 1 Report in 1999 and the 2000 OBMP Implementation Plan, Peace Agreement, and Program Environmental Impact Report included plans for the expansion of that first desalter even before it had begun operating. They also included plans for a second desalter, to be located in the southeastern portion of the basin. Although during the planning period the second desalter was sometimes called the “Jurupa desalter”12 because of its location, as they came to fruition the two desalters became simply Chino I and Chino II. Of course, facilities such as these do not pop out of the ground spontaneously or operate themselves. Institutional arrangements have to be put in place, or existing arrangements altered, to make them happen. In the case of the Chino I expansion and Chino II construction, they were initiated as projects of SAWPA Project Committee 14. As described in Chap. 9, Project Committee 14 was composed of the SAWPA member agencies Inland Empire Utilities Agency, Orange County Water District, and Western Municipal Water District. That group had collaborated on the original Chino I construction between 1998 and 2001. Construction of Chino II and the expansion of Chino I were supported with state funds: as envisioned when the Proposition 13 bond issue was being developed, SAWPA applied successfully to the State Water Resources Control Board for a distribution of $56 million in Proposition 13 funding. The combination of SAWPA Project Committee 14 as the organizational vehicle and Proposition 13 as the major funding source got things going. Parties within Chino Basin worked on the design of an ongoing structure to own and operate these and any future desalters. The desalters produced a valuable output, potable water, which could generate a revenue stream to support their operation and maintenance once they were built. The parties in Chino Basin that would be the principal customers for that water were not the agencies that built the desalters (IEUA, OCWD, and  Chino Basin Watermaster, Twenty-Fifth Annual Report of the Chino Basin Watermaster, Fiscal Year 2001–02. 12  For example, at the May 4, 2000 Special Referee Workshop, Tom McPeters talked about Rich Atwater, Don Harriger, and Bill Mills, the general managers of Inland Empire Utilities Agency, Western Municipal Water District, and Orange County Water District, respectively, agreeing to add “the Jurupa desalter” to SAWPA Project Committee 14. Transcript of Proceedings, May 4, 2000, p. 63. 11

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WMWD) but the water service providers – Chino and Chino Hills, obviously, but once the expansion was completed also Ontario, Norco, Jurupa Community Services District, and Santa Ana River Water Company. Together with IEUA, these providers designed a joint-powers agency named the Chino Basin Desalter Authority, known as the CDA. The CDA could take over from SAWPA Project Committee 14, operate both desalters permanently, and would be run by its beneficiaries.13 The CDA was formed on September 25, 2001, as a seven-member joint-powers agency composed of the six water service providers and IEUA. Construction was completed on the Chino I Desalter expansion in 2005. As expanded, Chino I had a capacity of 14.2 mgd, more than 16,000 acre-feet per year, from groundwater extracted by a set of 15 wells. The treatment facilities at Chino I could produce 2.6 mgd via air-stripping for removal of volatile organic compounds (VOCs) from wells 1 through 4. This was important for treating a Chino Airport contamination plume, described in the next chapter. Chino I could also produce 4.9 mgd of treated water via ion exchange for nitrate removal from wells 5 through 15 and 6.7 mgd of treated water via reverse osmosis for TDS and nitrate removal from wells 5 through 15. The Chino II Desalter was located just south of California Highway 60 and southeast of Ontario International Airport, at the intersection of Mission Boulevard and Etiwanda Avenue in what is now the City of Jurupa Valley. Construction on Chino II was completed in 2006 and it began operating in June. Chino II had a capacity of about 10  mgd or about 11,000 acre-feet per year, using groundwater extracted from a set of eight wells. It could produce 4.0 mgd of treated water via ion exchange for nitrate removal, and 6.0 mgd of treated water from reverse osmosis for TDS and nitrate removal. The brine from removed salts was disposed of in SAWPA’s Inland Empire Brine Line. Within a couple of years, Chino I and Chino II were extracting and treating about 30,000 acre-feet of groundwater per year. The project was a success in at least two important respects. First, the desalters were removing degraded groundwater from the basin while providing a replacement supply of potable water to six CDA members.14 Second, the desalters were helping to replace a large portion of the pumping in the southern half of the basin that had diminished due to the reduction in agricultural pumping. In Chino Basin, however, the desalters are never only a solution to problems. They are always also a problem that requires solutions. As discussed in previous chapters, the 1978 Chino Basin Judgment allocates the entire Basin Safe Yield among the pools and parties, and therefore calls for the replenishment of all pumping in excess of the parties’ authorized pumping  Two complementary motivations may also have been factors, but the documentary record is unclear. Orange County Water District and Western Municipal Water District may have been glad to be relieved of managing the desalters on an ongoing basis, and the water service providers who would be CDA’s “customers” might have preferred not to buy water from and depend on facilities owned and operated in part by OCWD. 14  IEUA is a CDA member but does not receive water from the desalters. 13

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rights – the so-called “bucket for bucket” replenishment obligation. Replenishment obligations of the parties are ordinarily satisfied either by deducting the amount of their excess pumping from their stored water accounts (if they have sufficient stored water) or by paying Watermaster a replenishment assessment to purchase replenishment water (e.g., imported water) to be recharged to the basin to make up for the overpumping. Neither the desalter facilities nor the Chino Basin Desalter Authority are parties to the Judgment with allocated pumping rights. Unless one or more Judgment parties (such as the six water service providers who receive water from the desalters) wants to dedicate their decreed pumping rights to the desalters – and they do not – all desalter pumping accrues a replenishment obligation. Under the terms of the Peace Agreement, desalter replenishment would be an obligation of the Appropriative Pool. It was one thing to agree to that in 2000; another to face it once both desalters were operating, began pumping tens of thousands of acre-feet of groundwater per year, and were expected to do so forever. The desalters themselves had become a condition to which Chino Basin groundwater management would have to adapt. To make matters worse, the combined 30,000 acre-feet per year pumped for Chino II plus the expanded Chino I still came well short of the goal in the 2004 Basin Plan of 40,000 acre-feet per year. Another desalter expansion remained to be done, and it too would have to be paid for in money and water.

11.3  Peace II The question of how the costs and benefits of implementing the 2004 Basin Plan’s maximum-benefit commitments would be distributed had come up right away. Later that year, Monte Vista Water District filed a motion requesting that the Court order Chino Basin Watermaster “to establish a program to equitably allocate benefits from water quality mitigation measures.” Judge Gunn held a hearing on this motion on December 2, 2004. The district subsequently withdrew its motion, but the motion signaled at least some level of concern about how effort and resources were going to be allocated and who would gain or lose from those allocations. In early 2000 as the OBMP Implementation Plan and Peace Agreement were completed, the imminent arrival of tens of millions of dollars in State funding helped ease parties’ reservations about costs and benefits at least temporarily. By early 2005, without the promise of a comparable new pot of “other people’s money” to share, parties’ concerns about future plans and projects  – not only but especially the desalters  – emerged in a new light. Complying with the maximum-benefit commitments, which included not only another round of desalter expansion but the attainment of hydraulic control and more, raised at least five crucial issues: • How to fund the construction of future desalters or expansion of the current ones, i.e., which was being referred to for the time being as “Phase III”; • Who would take, and pay for, the increased treated water output from Phase III;

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• How increased pumping for Phase III, let alone the pumping that was already feeding Chino I and II, would be replenished; • How hydraulic control would be achieved (people understood the concept but not exactly how it would occur); and, • Fairness to the upper-basin Appropriative Pool members who would share in the costs, particularly the replenishment obligation, of projects that some saw as benefiting primarily the lower basin. The desalter replenishment obligation in particular was at the center of these overlapping concerns. When individual parties in the Appropriative Pool incur a replenishment obligation by pumping more than they are allocated under the Judgment, their specific obligation is assessed against them individually. The replenishment obligation incurred by the desalters was going to be an obligation of the Appropriative Pool as a whole, to be apportioned among the Pool members by a formula that was based partly on their respective shares of the basin Operating Safe Yield and partly on their groundwater production in the preceding year. Thus, every Appropriative Pool member would have a desalter replenishment obligation to meet, regardless whether they had over-pumped their own allocation and regardless whether they purchased treated water from the desalters. The desalters were supposed to be of benefit to all appropriators because they were tied to the 2004 Basin Plan that allowed for more recycled water reuse within the basin, would help reduce the loss of rising water leaving the basin at the southern end and therefore make sure that water recharged in the basin stayed there, etc. That was the theory. It became clear that the theory was not embraced uniformly. For the appropriators in the southern end of the basin, primarily the CDA members, the fact that the desalter replenishment obligation would be assigned to the whole Appropriative Pool made eminent sense. After all, it was not as though they were receiving the treated water from the desalters for free; they purchased what they took. To have them buy the treated water and incur all of the replenishment obligation for the pumped water too seemed not only like a double financial burden but also unfair. They were not the only ones in the basin benefiting from the desalters; if anything, they were helping everyone else in the basin by cleaning up legacy groundwater contamination that was not their fault. Appropriators in the northern half of the basin, like Monte Vista Water District, saw themselves paying for subsidence control in Chino and Chino Hills, paying for the groundwater contamination several of them blamed on the dairies in the southern end, as well as paying for recharge across the northern end. In the northwest area of the basin, at the upper end of Management Zone 1, parties such as Pomona, Upland, and Monte Vista Water District had been dealing with subsidence and water quality problems of their own. In the northeast area of the basin, in Management Zone 3, parties such as Fontana, West Valley Water District, and Cucamonga Valley Water District were dealing with continued overdraft as the expansion of recharge capacity had not yet caught up with groundwater production in that area. Clearly the disgruntlement over desalter replenishment obligations could not be resolved by shifting the allocation of costs northward or southward. No one wanted

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to assume the share of replenishment obligation they had already, let alone more. It was time for a new round of negotiations, and a new solution concept. There were several components of that new solution, but arguably the most significant was the concept of “basin re-operation.” Just as “hydraulic control” became Hydraulic Control, “basin re-operation” became Basin Re-Operation, but the link between the two was much greater than that. Basin Re-Operation meant deliberately drawing down groundwater levels in Chino Basin through an allowed “controlled overdraft.” Hydraulic Control was already understood as involving lower groundwater levels in order to halt the rising water lost from Chino Basin and cut off the outflow of water high in TDS and other contaminants from the Santa Ana River. Desalter production of 40,000 acre-feet per year in the southern half of the basin was intended to achieve Hydraulic Control, but it was not certain that the increased desalter pumping alone would do the trick given the volume of water leaving the basin and reaching the river which, in the mid-­2000s, was still growing. Basin Re-Operation – over-pumping the basin for a period and changing the flow of groundwater in Chino Basin by purposely lowering groundwater levels – could be a faster and more certain means to the achievement of Hydraulic Control. Unlike the desalters, the deliberate overdrafting would not yield water-­ quality benefits  – the desalters still provided that particular dual benefit  – but it could accomplish something else. If the parties and Watermaster could agree to purposely drawing down the basin – i.e., to a quantity of unreplenished pumping over a defined period of years – that could be used to offset the replenishment obligation of the desalters. Stated another way, the pumping for the desalters might be accounted for as if it were the pumping that was accomplishing the deliberate overdraft. Basin Re-Operation could have a dual benefit of its own – a means of attaining Hydraulic Control more quickly and certainly, and of reducing the desalter replenishment obligation being faced by the members of the Appropriative Pool. A principal purpose of the Chino Basin adjudication and the 1978 Judgment had been the prevention of further overdrafting of the basin. At a minimum, Basin Re-Operation would require an amendment to the Judgment. It would therefore require more than just an agreement within the Appropriative Pool. The decision-­ making process in Chino Basin necessitated approval by all three Pool Committees, and the Advisory Committee, and the Watermaster Board. Thus Basin Re-Operation would also require a batch of assurances to and among all the parties that the long-­ term condition of the basin as a whole, and each of their individual positions, would be protected. On the other hand, there was some precedent for such a move. As explained in Chap. 6, in the negotiation of the 1978 Judgment the parties had agreed to a “controlled overdraft” of 200,000 acre-feet over 40  years, or 5000 acre-feet per year. This provision had eased somewhat the impact on the Appropriative Pool of having their share of the Basin Safe Yield reduced (because the overlying users’ shares were protected in light of the California Supreme Court’s 1975 decision in the San Fernando case), and allowed for a transition period of 40 years during which it was expected that a substantial portion of the Agricultural Pool’s pumping could be

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reallocated to the appropriators. In its own way, Basin Re-Operation was a similar strategy: it would serve an overall benefit of achieving Hydraulic Control and maintaining compliance with the 2004 Basin Plan, while also cushioning at least temporarily the impact of a major increase in replenishment obligations. Over the summer of 2006, Chino Basin parties and their attorneys and the Watermaster staff and attorneys worked out the language of a “Stakeholder Non-­ Binding Term Sheet,” i.e., a set of provisions that no one was committing to yet, but that the participants concurred could become the basis for an agreement. It included a figure for the controlled overdraft under Basin Re-Operation: 400,000 acre-feet to be withdrawn from the basin by the year 2030, i.e., over the remaining term of the Peace Agreement. The stated goal of the Term Sheet was to “articulate methods to maximize beneficial use of the Basin.”15 Collectively those methods came to be known as “the Peace II measures” or simply “Peace II.” They included not only Basin Re-Operation but the Phase III desalter expansion, continued recharge of at least 6500 acre-feet per year in Management Zone 1, continued commitment to the expansion of recharge in Management Zone 3, and more. The Peace II measures would also necessitate the close cooperation of non-pumpers in the basin such as IEUA and Western Municipal Water District, the consent of the Regional Board and, of course, more money if it could be found somewhere. Peace II would also require the Court’s approval since it looked as though it would require amendment not only of the Judgment but of other Court-approved agreements such the OBMP Implementation Plan and the Peace Agreement. The Term Sheet was circulated among the Pool Committees, Advisory Committee, and Board. Wildermuth conducted a preliminary engineering analysis of the impacts that would result from Basin Re-Operation. Wildermuth’s analysis and the modeling he did were submitted to and reviewed by the Special Referee’s Technical Expert, Joe Scalmanini, who approved of them. Watermaster staff, in consultation with the parties and other stakeholders, developed a project list and description, and prepared an OBMP Supplement to incorporate Basin Re-Operation and Hydraulic Control. An updated projection was prepared and circulated of desalter production through 2030 and how the groundwater fed to the desalters would be accounted for under two Basin Re-Operation scenarios (faster and slower). The Peace II negotiations also included a new element, an economic analysis. The desalter expansion and most of the other Peace II measures might have to be financed by the groundwater producers and other stakeholders such as the municipal water districts. If state or federal funding could somehow be obtained that obviously would be ideal, but, unlike the 1999–2000 negotiations on the OBMP and Peace Agreement, nothing was pending in 2006–2007. Watermaster contracted with Dr. David Sunding, an economist at University of California-Berkeley with a specialization in water resource economics but without ties to Chino Basin. Sunding conducted an economic analysis of the overall (i.e., basin-wide) benefits of the

 Watermaster Resolution 07-05, “Resolution of the Chino Basin Watermaster Regarding the Peace II Agreement and the OBMP Implementation Plan.” October 25, 2007.

15

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benefits of the Peace II measures and their costs. The benefits included Hydraulic Control, which meant being able to continue under the 2004 Basin Plan, which meant increased recycled water reuse, avoided additional mitigation costs (beyond the desalters) for the high TDS and nitrate level in the groundwater, reduced reliance on expensive imported water, etc. The costs included the desalter expansion, the remaining extent of desalter replenishment obligation that would not be offset by Basin Re-Operation, further expansion of recharge capacity, etc. Because Basin Re-Operation would lower groundwater levels, it would also increase the length of pumping lifts and therefore parties’ pumping costs, raising the question of whether that would be worth it for everyone. Sunding completed this analysis in November 2006. His estimate of the monetary value of implementing the Peace II measures was a net benefit ranging from $283  million to $439  million dollars. He performed a follow-up analysis of the distribution of benefits and costs, focusing particularly on the ten largest Appropriative Pool members who would bear the vast majority of the costs of the Peace II measures. That analysis, completed in October 2007, found that while some members would enjoy greater net benefits than others, each of those Appropriative Pool members would be better off financially with the Peace II measures than without them. These economic analyses underpinned the argument that desalter expansion and the other tasks that lay ahead were worth doing or, at least, that the alternatives were worse. Western Municipal Water District provided another key piece of the Peace II puzzle, by expressing an interest in the desalter expansion project. WMWD is the MWD member agency that, among other things, provides imported water to water users in its service area. As described in previous chapters, WMWD’s service area extends far beyond Chino Basin, but it includes the southeastern portion of Chino Basin that lies within Riverside County. WMWD is the imported water provider for Jurupa Community Services District, the Santa Ana River Water Company, and the City of Norco, which provide water service to areas within Chino Basin that were growing fastest by the latter half of the 2000s and through the 2010s, including what are now the cities of Eastvale and Jurupa Valley. The price of MWD water purchased by WMWD and the other MWD member agencies was rising rapidly and, furthermore, MWD had begun providing financial support to member agencies for projects that would enhance their local water supplies and reduce their dependence on MWD imports. WMWD saw in the Phase III desalter expansion a potential opportunity. The increased treated water output could be used to meet the growing demand in its portion of Chino Basin. That could free up some of WMWD’s imported water from MWD to be used elsewhere in WMWD’s service area where there were other rapidly growing communities with restricted groundwater supplies. Moreover, WMWD might be able to secure funding from MWD to subsidize the cost of the desalter expansion and make the treated water from the desalters economically more attractive to WMWD. Having made this calculation, WMWD prepared and provided a proposal for the development and construction of the Phase III desalter expansion.

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Chino Basin Watermaster issued a call for proposals to see whether anyone else was interested in building the Phase III project and received no other offers. There were a couple of complicating institutional factors to be worked through in this regard. WMWD is listed as a “non-producer water district” in the Chino Basin Judgment (the same status as IEUA and the Three Valleys Municipal Water District) but has no assigned pumping rights to which a replenishment obligation could be attached. WMWD was also not a member agency of CDA which operates the Chino I and Chino II desalters. The other Chino Basin parties welcomed WMWD’s interest in the desalter expansion but were wary of how the increased pumping associated with the desalter expansion would be accounted for and what that would mean for everyone’s desalter replenishment obligations. In the documents that were being prepared and assembled for Peace II, these issues were dealt with by acknowledging them and providing a couple of options that could be pursued to deal with them without attempting to nail down all of the details. For instance, the Peace II provisions included the possibility that WMWD would join the CDA, that WMWD could undertake the desalter expansion itself or in partnership with either the City of Ontario or Jurupa Community Services District or both, would become a member of the Appropriative Pool through a motion to intervene, or would enter into an agreement with an existing Appropriative Pool member to which WMWD’s portion of the expanded desalter pumping could be attributed. Another important puzzle piece was supplied by the Overlying Non-Agricultural Pool, which agreed to dedicate its stored water to Chino Basin Watermaster. Over the years, as with the Agricultural Pool, groundwater production by members of the Non-Agricultural Pool had regularly fallen below their adjudicated rights under the Judgment. Unlike the case of the Agricultural Pool, however, the 1978 Chino Basin Judgment contained no provision for under-production by the Non-Agricultural Pool to be reallocated to the Appropriative Pool. Under-production was simply credited to each Non-Agricultural Pool member’s account as stored water. By 2007, the Non-Agricultural Pool members together had built up 40,000 acre-feet of stored water in Chino Basin. The Non-Agricultural Pool agreed to dedicate 4000 acre-feet of that stored water to Watermaster for desalter replenishment obligation offset plus 36,000 acre-feet to Watermaster to auction off so it could use the proceeds for desalter expansion or development of a storage and recovery program. What the Non-Agricultural Pool wanted in exchange was a modification to the Judgment that would allow them to monetize their under-production in the future, i.e., to either transfer unused water to other Non-Agricultural Pool members who could use it or to transfer it to Watermaster for distribution to members of the Appropriative Pool. It was a deal that appeared to make sense all around: it was not in anyone’s interest to have under-produced water continue to build up in Non-Agricultural Pool members’ accounts and not have any means of reallocating that water to others who could benefit from it. During this negotiation process there were multiple conference calls from December 2006 through August 2007 with Judge Gunn and Special Referee Schneider. Since the Peace II measures were certain to require amendments to the Judgment and the OBMP, it was essential to keep them apprised of what was

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coming. Since there are no transcripts of those calls it cannot be confirmed whether all of them were about Peace II, but the unusual number and frequency of calls during this time period suggests that most or all of them were likely related to it. In addition, after the Peace II measures were agreed and presented formally to the Special Referee and Judge Gunn, the string of conference calls came to an end. At a furious pace in October 2007, the various provisions and measures were collected up in Watermaster Resolution 07-05. The resolution approved the Peace II measures, which were appended to the resolution as a series of attachments. The Pool Committees and the Advisory Committee recommended approval of the resolution, which the Watermaster Board did unanimously on October 25, 2007. According to the resolution, the Peace II measures formally consist of: • • • • •

an amendment of the Watermaster Rules and Regulations; three amendments to the Judgment; a 2007 Supplement to the OBMP Implementation Plan; an amendment to the Peace Agreement; a Purchase and Sale Agreement between the Non-Agricultural Pool and Watermaster; and • provisions for construction of the Phase III desalter expansion and WMWD’s role. Later that day, Watermaster counsel presented the Peace II measures to Special Referee Schneider and to Judge Gunn, along with a motion to approve Peace II. No opposition was filed. Among their provisions, the Peace II measures included an agreed-upon procedure for handling the current and future desalter replenishment obligations. The obligation was first to be minimized to the extent possible in the following ways, listed in order. Watermaster would: 1. first apply the water that had been dedicated by Kaiser Steel in its settlement with the Regional Board, then 2. apply the Non-Agricultural Pool’s dedication of stored water, then 3. apply any New Yield that had come into the basin, not counting increased stormwater recharge,16 then 4. any stored water losses from the “leave behind” requirement,17 then

 If, as expected, the desalters combined with Basin Re-Operation resulted not only in the cessation of groundwater outflow from Chino Basin to the Santa Ana River but also in the introduction of groundwater inflow to Chino Basin through the Santa Ana River bed, this “New Yield” attributable to the desalters, also referred to as “desalter-induced recharge” could be used to offset the desalters’ replenishment obligation. Replenishment obligation should not accrue to whatever portion of desalter pumping that, in effect, replaced itself by drawing additional water into the basin. 17  Non-parties (such as MWD) who stored water in the basin and then withdrew it were obliged to withdraw slightly less than they stored in order to account for the possibility that stored water was part of the water that exited the basin, and as a contribution to the common pool. It effectively became stored water that did not belong to any party. Watermaster kept account of this “leave behind water” and under these provisions could apply that toward offsetting the replenishment obligation of the desalters. 16

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5 . any contributions of Safe Yield made by any party, and then 6. water from the Basin Re-Operation account (the controlled overdraft, for which there was a schedule showing how much each year could be applied toward the desalter replenishment obligation).18 After all these offsets are applied by Watermaster to reduce the overall amount of desalter replenishment obligation, whatever obligation remains is to be distributed by formula among the members of the Appropriative Pool. Appropriative Pool members could satisfy their respective shares of the remaining obligation with water or money. They have the options of obtaining water via transfers from other parties and providing that amount to the Watermaster, instructing Watermaster to withdraw water from their stored water account, paying Watermaster to purchase replenishment water, or any combination of the above. Special Referee Schneider with the assistance of Technical Expert Joe Scalmanini reviewed the Peace II measures. Schneider provided the parties and Judge Gunn with a Preliminary Report on November 27, 2007 which raised several questions, especially about Basin Re-Operation and how the basin would be restored to what the Peace II documents referred to as a “new equilibrium” after the desalter expansion and controlled overdraft. At a hearing before Judge Gunn on November 29th, Watermaster Counsel argued that with such a delicate and multi-component negotiated agreement, which was presented to the Court with no opposition, the Court should treat the Watermaster motion as presumptively valid and grant it unless there was some compelling reason not to do so. This was not received well, by either Special Referee Schneider or by Judge Gunn, who made it clear that he set great store by the advice of Schneider and Scalmanini and regarded their input as possibly somewhat more objective than that of Watermaster personnel who had been so intimately involved in negotiating the deal and trying to secure all the parties’ agreement. Also at that hearing, Watermaster Counsel Scott Slater, Watermaster CEO Ken Manning,19 and Watermaster consulting engineer Mark Wildermuth responded to some of the questions raised in Schneider’s preliminary report and promised to respond to the rest in writing subsequently. Watermaster provided supplemental documents to the Special Referee and the Court on December 13th, 14th, and 19th. Schneider submitted her Final Report to  The schedule for applying the 400,000 acre-feet of Re-Operation water divided it into a 225,000 acre-feet component that could be applied to replenishment obligations attributable to the Chino I and II desalters as they existed in 2007, and a 175,000 acre-feet component to meet the additional pumping demand of 10,000 acre-feet per year through 2030 for the Phase III desalter expansion which was projected to begin operation in 2012. 19  John Rossi had served as Watermaster CEO until 2005, when he left to become general manager at Western Municipal Water District after Donald Harriger retired. Ken Manning was chair of the board of directors at Upper San Gabriel Valley Municipal Water District in the neighboring Main San Gabriel Basin. He was well known and highly regarded by individuals who were actively involved in both that basin and Chino Basin, who encouraged him to apply for the Chino Basin Watermaster CEO position. Manning served from 2005 until the beginning of 2011, when he returned to Main San Gabriel Basin to take the helm of the San Gabriel Basin Water Quality Authority. 18

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Judge Gunn and the parties on December 20th. She recommended that the Court approve the Peace II documents but require a number of follow-up reports from Watermaster on some of the technical issues. She also stressed the importance of completion of the Recharge Master Plan Update (what became the 2010 RMPU discussed in the preceding chapter), and an explanation of how Watermaster and the parties expected to deal with the anticipated downward revision of Basin Safe Yield which was due to be recalculated in 2010–2011. On December 21, 2007, Judge Gunn approved the Peace II documents, and enumerated nine Conditions Subsequent. Failure by Watermaster to fulfill the Conditions Subsequent, wrote Judge Gunn, “will render the Court’s approval of Watermaster’s motion null and void.” He also wielded the stick he had used in 2000 when approving the OBMP Implementation Plan, Peace Agreement, and the appointment of the nine-member Watermaster Board to its first full five-year term: “A lack of compliance will also be seen as a failure by Watermaster, through its nine-member Board, to perform its most important duty: to administer and enforce the provisions of this Judgment and any subsequent instructions or orders of the Court.” It was a plain reminder to Watermaster of potential consequences, but is also a demonstration of Watermaster’s peculiar position – the Chino Basin Watermaster is not itself a party to the Judgment, nor a signer of the Peace Agreement, nor a signer of Peace II, but is the entity held accountable by the Court for their administration and enforcement. Of the nine Conditions Subsequent, the first two involved relatively minor corrections or clarifications about language and a table in the Peace II documents, and the ninth was a catchall provision that required Watermaster to comply with all the conditions. The other six Conditions Subsequent for Watermaster to meet were as follows: • by March 1, 2008, submit a revised technical report on Hydraulic Control to address issues raised in the Special Referee Report; • by April 1, 2008, provide the Court and Special Referee with a status update on CEQA review and assurances that all planned projects would receive CEQA review; • by July 1, 2008, submit an outline of the scope and content of the Recharge Master Plan Update, with follow-up reports on January 1 and July 1, 2009; • by July 1, 2008, report on the standards and criteria Watermaster plans to use to determine whether and when Hydraulic Control has been attained; • by December 31, 2008, provide a revised schedule of how New Yield and stormwater recharge from 2001 through 2007 would be accounted for, including how any unreplenished overproduction from that period would be addressed; and • by July 1, 2010, submit the completed Recharge Master Plan Update. These items were completed and deadlines met, although as described in the preceding chapter completion of the 2010 RMPU became complicated. Other complications arose along the way as well.

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11.4  Dispute and Delay in Peace II Implementation Among the many important provisions of the Peace II agreement were a financing arrangement to assist with the completion of projects under the Recharge Master Plan,20 and the authorization and assignment of responsibilities for the desalter expansion project. Both elements of Peace II implementation slowed, for different reasons. The desalter expansion was delayed by the economic recession and its associated effects, which will be described below. The Recharge Master Plan issue turned into an intense dispute between the Non-Agricultural Pool and the Appropriative Pool that burst into a series of accusations and even an appeal. As noted above, the Peace II measures addressed the accumulation of stored water by the Non-Agricultural Pool. In exchange for future opportunities to transfer unused pumping to Watermaster and the Appropriative Pool, the Non-Agricultural Pool agreed to dedicate up to 4000 acre-feet of its stored water to Watermaster for desalter replenishment obligation offset plus another 36,000 acre-feet that Watermaster could auction off. The Non-Agricultural Pool would receive a payment from the proceeds, and additional funds received from the auction would be available to the Appropriative Pool. This provided a very large benefit to the Appropriative Pool, which, as noted several times now, faced significant future expenses for desalter replenishment and whose assessments would also be the source of funds for completing the recharge projects under the Recharge Master Plan. Under Peace II, the auction of the Non-Agricultural Pool’s dedicated stored water was to be undertaken within 2 years. The price at which the water would be auctioned was tied to the price that would have been charged by MWD for replenishment water purchases. As the Peace II measures were finalized in December 2007, a new drought period began which lasted from 2008 through 2010. MWD’s replenishment water rates escalated much more sharply than envisioned at the time of the Peace II agreement. As a consequence, the auction proceeds that would go to the Appropriative Pool were likely to be far greater than anticipated with the Non-­ Agricultural Pool agreed to the dedication of the stored water. By the time the Appropriative Pool and Watermaster were ready to move forward with the sale21 of the stored water in late 2009, the Appropriative Pool stood to gain millions of dollars above what was anticipated in 2007. Members of the Non-­ Agricultural Pool began suggesting that the Appropriative Pool and Watermaster staff had slow-walked the sale as they watched the asset value of the stored water rise – as the agreement for the sale was being finalized, comments attributed to the Watermaster counsel about timing the sale for “the last possible day” might have been made with no ill intent but fueled the Non-Agricultural Pool’s suspicion.

 This refers to the original Recharge Master Plan from the OBMP, not the 2010 Recharge Master Plan Update. Peace II, reached in 2007, included a provision for funding part of the cost of completing the projects under the original Recharge Master Plan. 21  The transaction ended up as a purchase of the stored water rather than an auction. Chino Basin Watermaster, Thirty-Third Annual Report of the Chino Basin Watermaster, Fiscal Year 2009–10. 20

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Ultimately, the Non-Agricultural Pool attempted to scuttle the sale by alleging that required notice of the sale had not been received by Pool members before the deadline stated in the Peace II measures. The Non-Agricultural Pool filed a challenge with the Court in March 2010, after the sale had taken place, using what is known as a “Paragraph 31” motion referring to a provision of the Chino Basin Judgment. This was the same procedural vehicle under which the “moving parties’ lawsuit” of 1988–1989, described in Chap. 7, had been made – challenging the manner in which the Watermaster had executed its responsibilities. The dispute became very heated very quickly. The Non-Agricultural Pool’s request for review of Watermaster’s actions encompassed several arguments and hundreds of pages of exhibits, but at its core was the procedural issue of whether the required notice of intent had been provided to the Non-Agricultural Pool members within the time allotted for the sale to proceed. After many more pages of motions, oppositions, and comments had been presented by Watermaster, the Appropriative Pool, and even the Agricultural Pool,22 Judge Reichert issued a ruling on June 18, 2010, rejecting the Non-Agricultural Pool’s claim that timely notice was not provided. A Non-Agricultural Pool member, California Steel Industries, filed a notice of appeal of Judge Reichert’s ruling on August 10th, and the Non-Agricultural Pool Committee filed a notice of appeal the next day. On November 22, 2010, the California Court of Appeal, Fourth District, ordered a Settlement Conference to be directed by a mediator. The settlement conference was held on January 26, 2011, with no settlement achieved. The Fourth District Court of Appeal then ordered appellate proceedings to begin. Those proceedings – primarily composed of dueling briefs and replies23 – continued through the rest of 2011. On January 18, 2012, the Fourth District Court of Appeal issued a Tentative Ruling reversing Judge Reichert and siding with the Non-Agricultural Pool and California Steel. In the wake of the Tentative Ruling, the parties entered into settlement negotiations, culminating in a Settlement Agreement on June 21, 2012. The agreement provided for the purchase of the Non-Agricultural Pool’s stored water by Watermaster on behalf of the Appropriative Pool, without a resale of the water by the Appropriative Pool – effectively with no opportunity for the Appropriative Pool to realize a gain from the sale of the water. The parties agreed to abide by the appellate court’s Tentative  The stored water transaction was a matter between the Appropriative Pool and the NonAgricultural Pool, but the Agricultural Pool Committee nevertheless submitted comments to the Court about it. One Agricultural Pool Committee filing on April 23, 2010, beseeched Judge Reichert to actively intervene lest the Non-Agricultural Pool’s Paragraph 31 motion cause the “consensus building model of basin management” that had emerged from Peace I and Peace II to revert “back to the contentious, distrustful, and sometimes chaotic environment” of the 1990s. Even allowing for some rhetorical license, the comments indicate how divisive the allegations of unfair or inappropriate dealing had become. The Agricultural Pool Committee of the Chino Basin’s Response to Paragraph 31 Motion by the Overlying (Non-Agricultural) Pool Committee, April 23, 2010, at p. 2. 23  Opening briefs by the Non-Agricultural Pool Committee and California Steel Industries were submitted on March 8th and April 6th, respectively. Reply briefs from Watermaster and the Appropriative Pool Committee were filed on June 3rd and July 25th. Replies to the reply briefs were filed on October 28th by the Non-Agricultural Pool Committee and California Steel Industries. 22

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Ruling as the final decision on the matter – four and a half years after the stored water provisions had been agreed to in Peace II. As originally envisioned, 10% of the stored water sold by the Non-Agricultural Pool would be devoted to desalter replenishment, and the agreement further stated that the Non-­Agricultural Pool was absolved of any additional contribution to desalter replenishment. As for the desalters themselves, the Phase III desalter expansion had been projected to cost more than $100 million. In 2008, as noted before, the U.S. economy fell into its worst economic recession since the Great Depression of the 1930s. Among other things, the recession resulted in restriction of credit availability by lenders and a similar though not equal contraction in willingness to borrow. The recession and credit crunch lingered through 2009 until economic recovery really began to resume in 2010. As noted in the preceding chapter, the recession affected projections of the pace of economic and population growth in Chino Basin and the rest of the region. Water conservation successes also affected projections of growth in water demand. Under these circumstances, Western Municipal Water District wanted to revisit its estimates of the economic prospects for the desalter expansion, and made it clear that it was unwilling and unable to move forward unless it was able to secure funding support from the Metropolitan Water District through MWD’s Local Resources Program. Accordingly, progress on the desalter expansion also proceeded more slowly than had been anticipated when Peace II was completed and approved at the end of 2007. There was some progress – for example, WMWD joined the Chino Basin Desalter Authority on April 2, 2009. WMWD, the City of Ontario, and Jurupa Community Services District decided that they would pursue the expansion project together. Also, WMWD and the City of Ontario commissioned and received a report from engineering consultants on the best options for implementing the desalter expansion. The report recommended that the expansion consist of an enlargement of treatment capacity at the Chino II Desalter site by 10.5  mgd (approximately 11,800 acre-feet per year). It also recommended that Chino I Desalter wells 13, 14, and 15 be redirected to the expanded Chino II Desalter. In other words, with new pipelines, those three wells (which were the easternmost wells feeding Chino I) would feed Chino II instead of Chino I. A new set of wells called the Chino Creek Well Field would be added near and connected to the Chino I Desalter. This approach would (a) avoid the cost of constructing an additional desalter facility on a third site, (b) achieve the goal of expanding the capacity of Chino I and II to the target of 40,000 acre-feet per year, and (c) have the added advantage of adding the Chino Creek Well Field in a location where those wells could intercept more of the VOC contamination coming from the Chino Airport and more of the outflow from Chino Basin, thereby best enabling the attainment of Hydraulic Control. Nevertheless, although a recommended project plan was in place, construction expansion remained on hold through 2010. The Regional Water Quality Control Board regarded the delay as a failure to maintain compliance with the maximum-benefit commitments under the 2004 Basin Plan. In April 2010, the Regional Board informed IEUA and Chino Basin Watermaster that the Regional Board intended to issue an order of Administrative Civil Liability and impose penalties on the two agencies over the lack of progress. Although IEUA and Watermaster were not the agencies who had agreed to build the

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Phase III desalter expansion project, they were responsible to the Regional Board for compliance with the maximum-benefit commitments. The two agencies and the Regional Board reached a settlement in June 2010. They paid a fine of $124,350 to the Regional Board (halved from an original figure of $227,700) and agreed to a new construction and operation schedule for the Chino Creek Well Field and the attainment of Hydraulic Control. In addition, IEUA agreed to undertake and pay for a program of residential water softener removal to reduce the total salt load to the basin and consequently to the Santa Ana River.

11.5  C  ompletion of the Desalter Expansion and Attainment of Hydraulic Control Another year later, in June 2011, the MWD Board of Directors approved a Local Resources Program subsidy of $139 per acre-foot for the desalter expansion, and WMWD, Ontario, and Jurupa Community Services District were ready to begin construction. Five wells of the Chino Creek Well Field were constructed in 2012, parallel to and just south of the other line of Chino I wells. Those additional wells began pumping feed water to the Chino I Desalter in 2014. By early 2016, all wells in the Chino Creek Well Field were at full production. The capacity at the Chino II Desalter was increased through the installation of additional treatment equipment during 2015 and 2016. Wells 13, 14, and 15 were connected to Chino II and additional wells were constructed in locations that would both extract raw groundwater for the desalter and intercept a contamination plume emanating from the Ontario International Airport. The Chino II wells began operating in early 2017. All together, 27 wells were extracting groundwater from the southern portion of Chino Basin for treatment and distribution to potable water supply providers. As intended, groundwater levels have generally risen in the northwestern portion of the basin furthest from the river and declined in the eastern and southern areas nearest the river as it approaches Prado Dam. In the 2016 State of the Basin Report, the Chino Basin Watermaster announced the arrival of Hydraulic Control: Production at some of the [Chino Creek Well Field] CCWF wells began in late FY 2014 and commenced at the other CCWF wells in early 2016, reaching the level of production required to achieve Hydraulic Control. Currently, the Chino I and Chino II Desalters produce almost 30,000 acre-ft/yr of groundwater…. The final expansion of the Chino Desalters to achieve the OBMP goal of 40,000 acre-ft/yr of production includes the construction of three wells in the south-central portion of the Chino Basin that will feed into the Chino II Desalter. These wells are anticipated to begin production in 2017.

More specifically, in a memo to the Watermaster parties, Wildermuth stated that Hydraulic Control – the reduction of groundwater outflow to less than 1000 acre-­ feet per year – had been achieved on February 1, 2016. The desalters are now the second-largest category of groundwater pumping in Chino Basin, after the Appropriative Pool. The wells feeding the desalters extract

11.5  Completion of the Desalter Expansion and Attainment of Hydraulic Control

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Fig. 11.1  Groundwater Level Changes 2000–2018. (Source: State of the Basin Report 2018)

more groundwater than the Agricultural and Non-Agricultural Pools combined. They have shifted the spatial pattern of groundwater pumping in the basin. As explained in the preceding chapter, the distribution of groundwater production had shifted north in the 1990s and early 2000s as agricultural production in the southern half of the basin fell. After desalter operation began, the proportion of groundwater production occurring south of California Highway 60 rose from 31% in 2000 to 35% in 2016 while the proportion north of Highway 60 declined from 69% to 65%. In addition, combined with Basin Re-Operation and other measures such as increased recharge in Management Zones 1 and 3, desalter expansion has contributed to the hoped-for changes in groundwater elevation. Groundwater levels have risen in the northwestern part of the basin, declined in the southeastern area along the river (see Fig. 11.1), and there is now an area of groundwater depression in the shallow aquifer zone around the Chino Creek Well Field indicating that the groundwater flow through that area and out of the southern end of the basin has been successfully halted. The overall pattern of groundwater flow has been modified,24 and  Figure 11.1 also shows the groundwater level decline in the northeastern area of Chino Basin (MZ-3) since 2000. As noted in Chap. 10, those declines were not an intended outcome of Basin Re-Operation or instrumental to the attainment of Hydraulic Control. They remain a focus of ongoing efforts to improve groundwater recharge in MZ-3.

24

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there is evidence that Chino Basin is receiving increased underflow from the bed of the Santa Ana River.

11.6  Water Quality Problems Persist Although the installation, operation, and expansion of the desalters have contributed several benefits in Chino Basin, including the reduction of storage losses, the continuation of the maximum-benefit TDS and nitrate objectives in the 2004 Basin Plan, and making up for lost agricultural production while providing potable water supplies to the water service providers in the southern half of the basin, their impact on groundwater quality has been modest so far. The salt and nitrate buildup in the saturated and unsaturated soils of Chino Basin is of a magnitude and extent that it is likely to diminish only gradually over a very long period. This was foreseen at least to some degree in the OBMP Implementation Plan back in 2000: “In the short term, groundwater quality monitoring will not be a true metric of the water quality benefits of the OBMP. Water quality changes will occur very slowly.”25 From 2011 through 2016, TDS was measured at 570 Chino Basin wells and almost two-thirds of them (63%) showed maximum TDS concentrations during the 5-year period that were above the California secondary Maximum Contamination Limit of 500 mg/L. Not surprisingly the wells with the highest concentrations are mostly located south of Highway 60, i.e., in the southern half of the basin. Nitrate concentrations across most of the basin have also remained high, forcing IEUA and the Watermaster to continue to balance recycled water, imported water, and storm water recharge to keep the overall volume of recharge water going into the basin at or below allowed limits.26 The pattern of nitrate concentrations in Chino Basin groundwater is shown in Fig.  11.2, and the geographic clustering of the highest concentrations in the southern part of the basin is clear. It appears that “salts” will continue to be a management challenge in Chino Basin for many years, and changing the flow of groundwater is not likely to change that.27 The desalters and the flow of groundwater have been relevant to two other basin management goals – Prado Basin habitat protection and the movement and containment of groundwater contamination plumes in Chino Basin. Those are the subjects of the next chapter.

 Chino Basin Watermaster, OBMP Implementation Plan, p. 33.  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016. 27  Understanding spatial and temporal variation in nitrate concentrations in groundwater remains an area of active research. See, for example, Kawagashi et al. 2019. 25 26

Reference

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Fig. 11.2  Nitrate Concentrations in Chino Basin 2018. (Source: State of the Basin Report 2018)

Reference Kawagashi, Y., Suenaga, Y., Chi, N. L., Hama, T., Ito, H., & Duc, L. V. (2019). Understanding nitrate contamination based on the relationship between changes in groundwater levels and changes in water quality with precipitation fluctuations. Science of the Total Environment, 657, 146–153.

Chapter 12

Protecting Habitat and Arresting Contamination

Abstract  Chino Basin includes a large area of designated critical habitat for endangered species, which is also a valuable wetland and green space in the middle of the heavily urbanized and developed landscape. State and federal agencies along with local actors including the Chino Basin Watermaster have implemented an adaptive management program for habitat conservation efforts for threatened and endangered species in Chino Basin. In addition, there are several groundwater contamination sites (“plumes”) in Chino Basin, which have necessitated the development of pumping and treatment options to contain and remediate them. Protecting and improving groundwater quality in the basin has become part of the location and operation of the desalter facilities described in Chap. 11. Overall, Chino Basin groundwater management has had to adapt to and incorporate contamination remediation and habitat preservation. Keywords  California · Chino Basin · Groundwater · Habitat protection · Endangered species · Monitoring · Groundwater contamination · Contaminant remediation · VOCs · Perchlorate · Stringfellow Acid Pits

The spot where the chronically congested Riverside Freeway (California Highway 91) passes the stark, eye-catching face of Prado Dam, surrounded by innumerable shopping centers, warehouses, and apartment complexes, would seem to be the most improbable songbird habitat. Just the other side of the dam, however, away from the freeway, sits the largest area of riparian forest in southern California – the wetlands lying within the Prado Flood Control Basin and Prado Regional Park. There, some of the few remaining nesting pairs of the tiny and endangered Least Bell’s Vireo make their home among the willows. Two other endangered bird species live there too – the Southwestern Willow Flycatcher and Yellow Billed Cuckoo. Leave the 91 Freeway and head north instead on Highway 71 toward Ontario and Chino, and a vast green space spreads out before you as you pass the crest of the dam. The sight is as welcome as it is incongruous. This too is part of the milieu within which Chino Basin groundwater management takes place. Here at the southernmost tip of the basin, where the Santa Ana River reaches Prado Dam, is a huge and ecologically sensitive floodplain. Its soils

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_12

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are continually wetted by the creek channels that, even in the driest season of the driest years, carry at least some flow from the wastewater treatment plants that dot the Chino Basin. At this point the groundwater is quite shallow, supporting the root systems of the willows and other trees as well as the base flow of surface streams.1 In normal and certainly in wet years, surface water flowing in the creeks and the river collects behind the dam, passing through gates at its base to make its way downstream to Orange County. During storms, Prado Dam serves its designed and original purpose – flood control. Thousands of acre-feet – millions of gallons – are held behind the dam for controlled release to the lower reaches of the river. The land behind the dam is thus sometimes inundated, sometimes marshy, and sometimes merely damp. Upon that land sits a protected green oasis amid one of the most heavily urbanized metropolitan regions in the United States. Although this remarkable space is appreciated by everyone, from a water management perspective it is also a challenge and a constraint. Preserving this habitat and protecting its flora and fauna has required decades of balancing and rebalancing. The designated habitat area is shown in Fig.  12.1. The mission and critical responsibility of the U.S. Army Corps of Engineers is releasing water in wet periods fast enough to maintain a reserve of flood-control capacity behind the dam to catch the next storm. Orange County’s history documents several damaging floods prior to the construction of Prado Dam, and millions of Orange County residents today live under its protection. On the upstream side of the dam, the newer Chino Basin municipalities of Eastvale (incorporated 2010) and Jurupa Valley (incorporated 2011) as well as the established cities of Norco and Corona enjoy neighboring the greenery of Prado Basin but also need the flood-control operation to keep the inundated area in check. On the other hand, Orange County Water District prefers to have as much water held (conserved) behind the dam for as long as possible, so it can be released slowly in order to maximize infiltration into the Orange County groundwater basin and minimize the amount that disappears into the Pacific Ocean. At the same time, the U.S. Fish and Wildlife Service keeps a watchful eye on the endangered species. The Santa Ana River Watermaster maintains its vigil over the amount of water flowing through the dam each year from the upper watershed area to the lower. The Regional Water Quality Control Board monitors and regulates the quality of that water. Protective measures have been taken to try to maintain adequate flows in certain reaches of the river to sustain the Santa Ana sucker, a small, bottom-feeding fish that was listed as endangered in 2000 and is found only in portions of the Santa Ana and the San Gabriel Rivers and Tujunga Creek.2 1  In the Prado Basin habitat area, the average depth to groundwater is less than 15 feet. Wildermuth Environmental, Inc., Annual Report of the Prado Basin Habitat Sustainability Committee – Water Year 2015/2016. 2  Most of the sucker habitat within the Santa Ana River lies upstream within Western Municipal Water District and San Bernardino Valley Municipal Water District and the service areas of the water suppliers in those upstream communities. Inland Empire Utilities Agency and Chino Basin Watermaster are among the 12 agencies that participate in the Upper Santa Ana River Habitat Conservation Plan. Their continued participation is necessary to maintain their diversion and discharge permits from state and federal agencies.

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Fig. 12.1  Prado Basin habitat area. (Source: Chino Basin Watermaster)

12.1  Watching Out for Hydraulic Control’s Effects Clearly, the Prado Basin setting was already complicated enough in the 2000s. Now add Chino Basin desalter expansion, Basin Re-operation, and Hydraulic Control. These changes to the groundwater management regime were intended to reduce the amounts of water reaching the river (impaired water, to be sure, but wet nonetheless) as underflow from Chino Basin. How those changes would affect conditions in Prado Basin became an important question. The volumes of water involved in the desalter expansion, Basin Re-operation, and Hydraulic Control endeavors were quite large, more than enough to be valid cause for concern. Agricultural pumping in the southern portion of Chino Basin had fallen from an annual average of 41,000 acre-feet during the years 1979 to 2000 to approximately 6000 acre-feet by 2016. That decline in pumping corresponded with increased surface and subsurface water in the Prado Basin and an expansion in the area of riparian vegetation and thus habitat. The Chino Basin desalters began operation in 2001 with approximately 8000 acre-feet of pumping, which rose to 28,000 acre-feet of pumping by 2015. Once the Phase III Desalter Expansion was completed and operating at full capacity, pumping for the desalters was expected to reach the long-envisioned target of 40,000 acre-feet per year. It required no stretch of the imagination to anticipate that this could have detrimental effects in Prado Basin.

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An added concern was that wastewater treatment plant discharges – an important surface water source to the river and Prado Basin – also declined beginning in 2005. This was foreseen, but only to an extent. Once the 2004 Basin Plan allowed for increased recycled water reuse within Chino Basin, larger amounts of the treatment plant output were recharged to groundwater rather than being discharged to the creeks and ultimately to the river. As it turned out, treatment plant discharges fell by much more than was anticipated. Two factors that were not as readily foreseen occurred between 2008 and 2016 – the major economic recession of 2008–10 which slowed and for a while even reversed the growth of economic activity, and the public’s response to water conservation measures adopted in response to severe drought that occurred in six of the eight years from 2008 to 2016. Reduced water consumption by residents and business translates directly into reduced wastewater output. The drop was quite dramatic: from 186,000 acre-feet in combined treatment plant discharges in 2005 to 102,000 acre-feet in 2016. As a consequences of these two occurrences, Prado Basin experienced a combination of reduced inflows and increased extractions. The 2007 Peace II measures for satisfying the 2004 Basin Plan and implementing Basin Reoperation and Hydraulic Control included a commitment from Chino Basin Watermaster to develop and implement an adaptive management program for the Prado Basin.3 In cooperation with the regulatory agencies (U.S.  Fish and Wildlife, the Regional Board), the dam operator (U.S. Army Corps of Engineers), the largest wastewater treatment plant operator (Inland Empire Utilities Agency), and the desalter facility operator (Chino Desalter Authority), Watermaster would monitor the effects of the groundwater management changes on Prado Basin’s vegetation and habitat and recommend modified or additional management actions as needed. Although modeling performed in connection with Peace II, Basin Re-operation, and Hydraulic Control did not predict negative impacts on Prado Basin, the adaptive management program was recommended in the Peace II SEIR as a contingency measure to determine whether negative impacts appeared once Re-operation and Hydraulic Control were put in place.4 Watermaster and IEUA convened a Prado Basin Habitat Sustainability Committee to develop and oversee the adaptive management program, with technical support by Wildermuth Environmental, Inc. Most committee members represent cities and water agencies or water companies in the area; there are also representatives from the U.S. Fish and Wildlife Service, U.S. Bureau of Reclamation, and Orange County Water District. The adaptive management design for the Prado Basin Habitat Sustainability Program involves monitoring, stakeholder review and analysis of the data, evaluation of any changes in habitat conditions, and modifications in basin management if and as needed. 3  More specifically, the Subsequent Environmental Impact Report (SEIR) conducted for the Peace II measures identifies the Adaptive Management Program for Prado Basin habitat as a mitigation measure. 4  Chino Basin Watermaster Staff Report accompanying the 2016 annual report of the Prado Basin Habitat Sustainability Committee.

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Beginning in 2005, Watermaster and IEUA installed monitoring wells throughout the southern and eastern portions of Chino Basin for the Hydraulic Control Monitoring Program as part of the maximum-benefit commitments associated with the 2004 Basin Plan. Some of those monitoring wells were in and near Prado Basin, since that is an area of active riverbed-groundwater interaction. For the Prado Basin Habitat Sustainability Program beginning in 2015, Watermaster and IEUA added more monitoring wells within Prado Basin. In addition to monitoring groundwater conditions (depth to groundwater), the Program entails: measurements of surface water flow in the creeks that enter Prado Basin and in the river that flows through it; the areal extent of riparian vegetation within Prado Basin; an index of vegetation health (referred to as “greenness”) based on aerial photographs; weather conditions; and measures of groundwater-surface water interaction between the river and the groundwater basin, which are crucial to hydraulic control (whether and to what extent the basin is losing water to the river or vice versa) but also help update the water supply conditions in Prado Basin. The Prado Basin Habitat Sustainability Committee reviews these data produced each year by Watermaster in cooperation with other agencies. The news thus far has been good. The extent of riparian vegetation has increased slightly since 2000, to 4350 acres.5 Groundwater levels remained not only shallow but stable despite the 2012–2016 drought. The “greenness” indicator of vegetation health declined during those years but recovered once the drought ended. Greenness declined during 2015–19 but increased in 2020.6 Generally, greenness has gone up or down slightly year to year but has been stable overall with no clear trend upward or down. Of equal importance, the modest changes in the greenness index appear uncorrelated with the changes in water conditions; from year to year, increases and decreases in the former have not corresponded with increases and decreases in the latter. Unfortunately, a pest known as Polyphagous Shot Hole Borer (PSHB) began appearing in trees in the Prado Basin during the 2010s, and there is measurable impact to tree health in the locations where PSHB has been identified. The borer’s appearance may have contributed to the greenness decline during 2015–19. Some wildfires also occurred in the area during those years that could have stressed some of the vegetation. Thus far, vegetation extent, vegetation health, and groundwater levels in Prado Basin have remained stable despite the presence of drought, increased pumping, a new pest, and occasional wildfires. Basin Re-operation and Hydraulic Control do not appear to be having negative impacts so far. The Habitat Sustainability Program annual reports also contain projections of groundwater elevations through 2030. Across the Prado Basin, groundwater levels are projected to rise slightly in some areas and decline slightly in other areas (less than 5 feet up or down over the period, with changes of two feet or less in most places).  Wildermuth Environmental Inc., Annual Report of the Prado Basin Habitat Sustainability Committee – Water Year 2015/16. 6  Wildermuth Environmental Inc., Annual Report of the Prado Basin Habitat Sustainability Committee, Water Year 2019/20. 5

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The Prado Basin Habitat Sustainability Committee has reached the same conclusions each year since the program began in 2015. The committee has recommended that the monitoring program continue but, in light of the indicators’ relative stability, has not recommended any remedial actions or modifications to the management program. The forecast of groundwater levels in Prado Basin remaining shallow and stable has reinforced that committee’s inclination to keep the management program operating as it has.

12.2  L  ocating, Containing, and Intercepting Contamination Plumes Groundwater quality threats emerged and captured attention in the 1980s, as described in Chap. 7. Since then, several additional groundwater contamination sites, referred to as “plumes,” have been detected. Pumping and treatment options have been put in place to contain and remediate them. The discovery of contaminated groundwater has been another change to which groundwater management in Chino Basin has had to adapt. Within Chino Basin there are seven contamination sites under state or federal cleanup orders, and another six sites with voluntary cleanup operations. Twelve of these 13 sites involve volatile organic compounds (VOCs), of which the most common is tetrachloroethene or TCE. According to the 2016 State of the Basin report, most of the VOC locations are at known point sites of contamination such as the Chino Airport, Ontario International Airport, Milliken Landfill, GE Flat Iron facility, GE Test Cell facility, Stringfellow Acid Pits, Alger Manufacturing, the former Kaiser Steel plant, Crown Coach, Alumax, and the California Institution for Men. Some of these sites have other contaminants as well. The locations of several groundwater contamination plumes are shown in Fig. 12.2. The Stringfellow Acid Pits site was mentioned in Chap. 7. It is the largest toxic waste site in California, one of the earliest federal Superfund sites, and contains numerous contaminants. The site itself is in what is now the City of Jurupa Valley, which incorporated in 2011. A groundwater plume with levels of perchlorate more than twice the Maximum Contaminant Limit extends from the Acid Pits site in the Jurupa Mountains southward. The U.S. EPA built an emergency treatment facility at the site in 1996, and contaminated groundwater has been removed from the treatment site at a rate of approximately 100 acre-feet per year totaling more than 2500 acre-feet removed thus far. The State of California took over the cleanup operation after being found partially liable due to insufficient regulatory enforcement as the site began leaking contaminants to groundwater. The State built a $52-million Pyrite Canyon Treatment Facility at the site, which opened in 2016 and was designed to

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Fig. 12.2  Chino Basin groundwater contamination plumes. (Source: State of the Basin report 2018)

increase the amounts of removal and treatment.7 Even so, remediation is expected to be needed at Stringfellow for another 400 years – however difficult or expensive it is to prevent groundwater contamination, groundwater cleanup is a lot harder and more costly. Another contamination site in Chino Basin with a history that goes back to the 1980s is called the “South Archibald Plume” for its location along Archibald Avenue, a north-south thoroughfare that traverses Chino Basin. It can also be called the Ontario Airport Plume, because it originates at the airport site and extends southward from there, consistent with the direction of groundwater movement. It is primarily a TCE plume. It was discovered in the 1980s by the Metropolitan Water District when MWD, the Watermaster (which was then Chino Basin Municipal Water District), and the City of Ontario were exploring a project to store surplus MWD water in Chino Basin for later recovery as described in Chap. 7. Doing its due diligence to investigate the basin as a possible storage site, MWD found TCE in wells south of the Ontario International Airport and notified the Regional Water Quality Control Board. The Regional Board conducted a follow-up investigation that targeted industrial activities at the airport (TCE has been a common component

7  David Danelski, “Stringfellow Acid Pits: How State Spent $52 Million in Latest Cleanup Effort.” The Riverside Press-Enterprise. July 22, 2016.

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in degreasers and other solvents) as the likely source. Watermaster undertook its own program of sampling at 12 private wells within and near the TCE plume. Four companies – Aerojet, Boeing, General Electric, and Lockheed, which were identified as potentially responsible parties and came to be known by the acronym ABGL – undertook their own water quality sampling at wells at the site. In addition, Northrup Grumman Corporation and the U.S.  Air Force funded monitoring well construction, since the Ontario Airport had also been the location of what was once known as the Ontario Air Command and was home to the California Air National Guard.8 In 2005, the Regional Board issued draft Cleanup and Abatement Orders to those six entities. A long period of monitoring and negotiation extended through the 2000s and into the 2010s.9 In 2008, the Regional Board began investigating another possible source of the problem, and in 2012 issued a draft Cleanup and Abatement Order to IEUA and the cities of Ontario and Upland, which together had operated the Regional Wastewater Treatment Plant No. 1 (RP-1). During their decades of using solvents and cleaners at the airport, the companies had disposed of their wastes in the Ontario and Upland sewer systems, which directed their sewage to RP-1 operated by IEUA (previously Chino Basin Municipal Water District). The Regional Board claimed that their treatment and disposal operations in the area had contributed to the discharge of TCE. After further negotiations, a remediation program was settled upon and implemented. It involves (1) the installation of extraction wells in the plume and in the plume’s path, plus a dedicated pipeline to convey the extracted water to the Chino II Desalter which is also located south of the airport, and (2) replacement water supplied via tanks or pipelines for those households overlying the contamination plume while the remediation takes place. A final Cleanup and Abatement Order from the Regional Board in 2016 directs the execution of this remediation plan. The “RP-1 parties” (IEUA, Ontario, and Upland) participate in the operation of the remediation program, which is funded partly by them and partly by the ABGL parties. Watermaster continues sampling within and around the plume to track its movement and update its areal extent.10 The plume is approximately five miles long and two miles wide, and the TCE contamination detected within the plume remains approximately 19 times higher than the Maximum Contaminant Level under federal regulations.11 A general-aviation airport, the Chino Airport, is located in the southwestern portion of Chino Basin and is operated by San Bernardino County. A TCE plume was discovered there too and is referred to as the Chino Airport Plume. In 1990 the Regional Board issued a Cleanup and Abatement Order to San Bernardino County, directing the County to investigate and mitigate the groundwater contamination at  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016.  See, for example, updates in the Thirty-Third Annual Report of the Chino Basin Watermaster for Fiscal Year 2009–10, and OBMP Status Report 2011–1 for January–June 2011. 10  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016. 11  Chino Basin Watermaster and Wildermuth Environmental Inc., Quarterly Status Report – South Archibald Plume. July 2017. 8 9

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that site. The County has installed 75 monitoring wells to characterize the plume.12 Watermaster began sampling wells in and around that plume as well. In the 2000s, Watermaster’s monitoring established the presence of a plume of 1,2,3-­trichloropropane (TCP) mingled within the TCE plume. Several other contaminants are also present. Because remediating TCP would require additional measures beyond what would remove TCE, the Regional Board issued a new Cleanup and Abatement Order to the County in 2008 to remediate the Chino Airport Plume. The Regional Board issued a follow-up Cleanup and Abatement Order in 2017 to prompt remedial action by the County. Early remediation plans for the Chino Airport Plume involved the Chino I Desalter, which is located near the airport and includes air-stripping technology for VOC removal. That treatment has been demonstrated effective for TCE removal, but remediation for TCP and the other additional contaminants that have been found at the Chino Airport site requires additional treatment technology. The County had still not begun those actions by 2017, which was one of the reasons the Regional Board issued its follow-up order. Chino Desalter Authority monitors its wells in the area for evidence of contamination from the Chino Airport site. The County and Watermaster continue to monitor the location, extent, and movement of the plume, which is a little more than two miles long and a little less than a mile wide.13 Another groundwater contamination plume also extends from the site of the former Kaiser Steel plant in the northeastern part of the basin. Chino Basin Watermaster monitors the extent and movement of that plume as part of its Management Zone 3 (MZ-3) monitoring program under OBMP elements 1 and 4. Watermaster installed two multiple-depth piezometers to better characterize the vertical composition of the plume. This plume was a direct threat to potable water supply wells owned by the City of Ontario and Jurupa Community Services District. Ontario and Jurupa CSD joined with Western Municipal Water District in the Phase III Desalter Expansion as described in Chap. 11. Contaminated groundwater from the Kaiser plume is being intercepted by wells connected to the Chino II Desalter and is being treated there. General Electric’s Flat Iron manufacturing facility is an example of a voluntary cleanup site. GE has been conducting its own remediation program there, under an agreement the Regional Water Quality Control Board. Until 2007, GE was discharging the extracted and treated water from the site to the Ely Basins where it could percolate back into the groundwater. However, after the 2004 Basin Plan allowed for greater use of recycled IEUA water for recharge, Watermaster and IEUA wanted to expand the use of the Ely Basins for their own recharge operations and asked GE to develop another disposal method for its treated water. GE decided to pursue the construction of injection wells, which the Regional Board approved.14

 Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016.  Chino Basin Watermaster and Wildermuth Environmental Inc., Quarterly Status Report: Chino Airport Plume. July 2017. 14  Chino Basin Watermaster, 2007 Supplement to the Implementation Plan Optimum Basin Management Program for the Chino Basin. October 25, 2007. This document was also Attachment A to Watermaster Resolution 07–05. 12 13

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Perchlorate has been found in numerous wells throughout the basin, and some of it has not been linked with known point sources. Watermaster detected perchlorate in several MZ-3 wells in the early 2000s and undertook an investigation to try to determine its origin. Watermaster also participated in a study funded by the U.S. Department of Defense to try to identify the source of perchlorate in the Santa Ana River watershed (Hatzinger, Bohlke, Izbicki, Teague, & Sturchio, 2015; Izbicki, Teague, Hatzinger, Bohlke, & Sturchio, 2015). (Perchlorate has been a common component of rocket fuel for missiles.) The results of isotope testing in 2006 indicated that at least some, and possibly most, of the low-level presence of perchlorate in much of MZ-3 may be from a non-point source, however. A type of Chilean fertilizer that was widely used on farmland in southern California and elsewhere in the early twentieth century leaches a non-synthetic perchlorate into groundwater, and the isotope analysis was consistent with that being the origin of much of the perchlorate that is found away from specific contamination sites. It is a matter for concern, nonetheless, given the link between perchlorate and a number of health impacts including impairment of brain development in infants. The Prado Habitat Sustainability Program and the efforts to clean up contamination sites within Chino Basin demonstrated once again how central the desalters have become to everything. Thus far, they are not posing a threat to Prado Basin, which is good news. Equally good or better news is that they are playing a beneficial role in containing and intercepting some of the contamination plumes in Chino Basin. The plumes remain an important consideration in basin management, not only because of the threats they pose to public health and safety, but because their location and movement must be taken into account when managing groundwater pumping, recharge, and storage. The “water quality is water quantity” equation remains valid: having a right to extract groundwater does not mean much if the groundwater is unusable, and storing groundwater that becomes contaminated and unusable is equally unavailing.

References Hatzinger, P. B., Bohlke, J. K., Izbicki, J., Teague, N. F., & Sturchio, N. C. (2015). Evaluation of perchlorate sources in the Rialto-Colton and Chino California subbasins using chlorine and oxygen isotope ratio analysis (U.S. Department of Defense, National Research Program, Report ER-200942). Izbicki, J. A., Teague, N. F., Hatzinger, P. B., Bohlke, J. K., & Sturchio, N. C. (2015). Groundwater movement, recharge, and perchlorate occurrence in a faulted alluvial aquifer in California (USA). Hydrogeology Journal, 23(3), 467–491.

Chapter 13

Resetting and Updating

Abstract  A core element of adaptive groundwater management is revisiting and reassessing basin conditions, in order to determine whether aggregate levels of pumping can be sustained or need to be adjusted. Conflict is likely to arise if basin yield that is available for use has to be reset downward and pumpers have to share in the reduction. In the 2010s, the reevaluation of Chino Basin’s yield resulted in a recommended downward adjustment, which triggered a lengthy process of difficult negotiation which included court filings. Another downward adjustment was made in 2020. Also during 2018–2020, Chino Basin leaders and stakeholders undertook updates to the Optimum Basin Management Program (OBMP), and the development of a Storage Management Plan in light of numerous changes that have occurred since 2000. This chapter covers these recent episodes in Chino Basin’s experience with the realities of adaptive management. Keywords  California · Chino Basin · Groundwater · Basin Safe Yield · Groundwater storage · Optimum Basin Management Program · Adaptive management · Chino Basin Watermaster · Pool Committees

The OBMP and Peace Agreement in 2000 had set Chino Basin on an adaptive management course. During the 2000s most of the stakeholders’, parties’, and Watermaster’s attention and resources had been devoted to implementing the OBMP elements and the shift to hydraulic control. While those implementation efforts continued into the 2010s, new attention and resources were directed toward adaptation itself: recalculating and resetting the Basin Safe Yield, revising the management of water storage in the basin, and updating the Optimum Basin Management Program. Even the Chino Basin Judgment document was refreshed.1

1  In October 2011, Judge Stanford Reichert, in his second year as the judge assigned to the Chino Basin case, requested that Watermaster Counsel prepare a Restated Judgment. Over the 33 years since the 1978 Chino Basin Judgment, there had been many amendments and modifications. The purpose of the Restated Judgment was to incorporate into one document the 1978 Chino Basin Judgment plus all amendments and modifications, thereby allowing the Court and anyone else to

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_13

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The Safe Yield Reset, Storage Management Plan, and OBMP Update were complicated, highly participative, and contentious, as is the norm in Chino Basin. Once again, some of the conflict and the work to resolve it revolved around the desalters. Minimizing and if possible avoiding desalter replenishment assessments continued to be a kind of holy grail for many of the parties – in the case of the Safe Yield Reset, the allocation of desalter replenishment obligations became the subject of a 2-year-­ long appeal wrapped inside a 5-year-long process that finally concluded in 2019, just in time for the 2020 Safe Yield Reset process to begin.

13.1  The 2010 Safe Yield Reset Recalculating the safe yield of a highly developed, fully utilized groundwater supply is an enormous undertaking. It involves a tremendous amount of technical analysis, of course. The even greater challenge, however, is the institutional work that is required – determining what the revised yield means for each producer, adjusting recharge and replenishment plans and actions, and changing everyone’s costs. Of course, resetting the safe yield upward, allowing producers to pump more groundwater without paying for its replacement, probably would not be especially contentious. That was not the case with the 2010 safe yield reset, however. Reducing the safe yield is a substantially harder process, presenting basin users with the prospect of reduced benefits and increased costs. In those circumstances, people become intensely attentive to what they will lose, whether others will lose comparatively more or less, and what factors and formulas will be used to distribute the diminished benefits and greater liabilities. For all of its potential unpleasantness, however, updating and resetting the amount of allowed pumping is an essential element, perhaps the very core, of adaptive groundwater management. In Chino Basin in 2010, the safe yield (140,000 acre-feet per year) and the parties’ rights to it were over 30 years old, having been set in the 1978 Chino Basin Judgment and unchanged since. Meanwhile, almost everything else had changed – the availability of various water sources, the amount and distribution of water uses, land use and land cover, Santa Ana River flows, and more. As a cornerstone of the shift to adaptive management in Chino Basin, the OBMP and Peace Agreement stated the parties’ unanimous position that the Basin Safe Yield should be recalculated in 2010–2011 and every 10  years thereafter. Although it was both essential and required, recalculating and resetting the safe yield in Chino Basin proved to be another arduous and prolonged process – another demonstration of the realities of adaptive groundwater management. As the safe yield recalculation work began in earnest, Chino Basin users viewed the process with trepidation. As described in Chaps. 10 and 11, the changed

see and use the then-current version of the Judgment. Watermaster presented the Restated Judgment to the Court in September 2012, and Judge Reichert approved it.

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conditions in the basin raised concerns that the safe yield was declining. Indeed, what worried most users was not whether it had done so, but how bad the news would be. By 2007, modeling done by Wildermuth for the Watermaster in connection with Hydraulic Control yielded forecasts of declines in the Basin Safe Yield. Years later, a group of appropriators informed the Court in a March 2014 filing that Safe Yield reductions as great as 33,000 acre-feet had been mentioned. The prospect of a safe yield reduction was discussed during the negotiations of the Peace II measures and was a key reason that some of the parties insisted upon including a commitment to the completion of the 2010 Recharge Master Plan Update, and a specification of procedures for calculating Operating Safe Yield in the event of a decline in Basin Safe Yield.2 Once the Safe Yield recalculation was underway beginning in 2011, one early estimate indicated that the massive land-use changes in Chino Basin had dropped the average amount of infiltration of precipitation and applied water to less than 100,000 acre-feet per year since 2000.3 This estimate was especially concerning since the parties had agreed in the OBMP and Peace Agreement that the recalculation of Basin Safe Yield would be based on basin conditions from 2001 through 2010. The appropriators were the most apprehensive, with good reason. The 1978 Judgment clearly stated that any change in the Basin Safe Yield would be borne by the Appropriative Pool. The rights assigned to the two overlying pools from the Basin Safe Yield were settled, and the appropriators had what was left over – i.e., the Operating Safe Yield. According to the Judgment, increases or decreases in the Basin Safe Yield would translate directly to increases or decreases in what the appropriators could pump without incurring replenishment assessments. The arithmetic of this arrangement shows how Basin Safe Yield changes have outsized impacts on the appropriators. At the beginning of the 2010s, the Operating Safe Yield was approximately 50,000 acre-feet per year out of the overall Basin Safe Yield of 140,000 acre-feet per year. Supposing the revised Basin Safe Yield turned out to be 130,000 acre-feet per year, that would mean an Operating Safe Yield of 40,000 acre-feet per year absent any other changes or adjustments. Thus what might have appeared to be a 7% decrease in Basin Safe Yield would mean a 20% decrease in the Operating Safe Yield available to the Appropriative Pool as a whole, and presumably, if appropriators’ pumping remained steady, a 20% average increase in the Pool’s replenishment assessment obligations. In fact, since some Appropriative Pool members were able to operate within their allotted shares of

2  An April 2008 stipulation between Chino Basin Watermaster and Monte Vista Water District stated, “Watermaster has represented to the parties to the Judgment and the Court… that it will address the decline predicted by the model in safe yield through a comprehensive Recharge Master Planning effort that would consider measures that can mitigate any declines and offset the effects.” The Appropriative Pool Committee created an Agricultural Pool Reallocation Subcommittee devoted to ensuring that unallocated Agricultural Pool water would be used to offset at least part of the decline in Safe Yield as well. 3  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016.

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Operating Safe Yield while others regularly exceeded their shares significantly,4 the impacts on some appropriators of the Basin Safe Yield reduction would be substantially greater. The actual Basin Safe Yield reduction turned out to be less than feared, thanks to desalter expansion, Basin Re-Operation, and the pursuit of Hydraulic Control, and their anticipated effects of slowing losses from the basin and inducing additional Santa Ana River underflow. Mark Wildermuth’s recalculation, begun in 2011 and completed in 2015,5 produced a Basin Safe Yield estimate of 135,000 acre-feet per year. This would mean a 10% decrease in Operating Safe Yield. While not as dire as the gloomiest forecasts, this was still bad news for the Appropriative Pool. For the appropriators, the safe yield reduction was only the latest tightening of a squeeze. They were already paying the Agricultural Pool’s assessments as well as their own. Desalter expansion required additional pumping to reach the goal of 40,000 acre-feet per year of groundwater treatment by the end of the decade. Once the initial contributions of stored water from the Kaiser settlement and the Non-­ Agricultural Pool were gone (which did not take long) and once the Basin Re-Operation water went away, it was the Appropriative Pool alone that would become responsible to cover desalter production. The Basin Safe Yield Reset to 135,000 acre-feet per year was not calamitous by itself, but as they looked into the future and saw a smaller safe yield combined with rising desalter pumping, appropriators did not like what they saw. Furthermore, the impact of the reduction would be exacerbated for the Appropriative Pool by another factor. As described in Chap. 6, at the time of the 1978 Chino Basin Judgment, the parties agreed to allow a “controlled overdraft” of 200,000 acre-feet from the basin over 40 years or an average of 5000 acre-feet per year. That extra 5000 acre-feet per year of allowed pumping was allocated to the Appropriative Pool. By the time of the Safe Yield Reset, that 40-year allowance was running out – it would end in 2018. Therefore, for the Appropriative Pool members, a reduction in Basin Safe Yield from 140,000 acre-feet per year to 135,000 acre-feet per year was likely to take place at nearly the same time the allowed extra 5000 acre-feet per year would go away. Once both changes took place, the Operating Safe Yield allocated to the Appropriative Pool would drop by twice as much: 10,000 acre-feet per year.

4  The disparity should not be inferred as a signal of who operates prudently or profligately. When Operating Safe Yield shares were allocated in the 1978 Judgment, the appropriators’ situations were vastly different from what they had become by the 2010s. Some members of the Appropriative Pool have comparatively miniscule shares of Operating Safe Yield, based on the groundwater they were using in the 1970s, but water demands in their service areas have grown dramatically. 5  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016. The long period devoted to the recalculation was due in part to the development of a new basin model. Wildermuth argued and Watermaster agreed that an improved and more dynamic model of basin conditions was essential to an accurate Safe Yield recalculation. There followed a process of peer review of the proposal new model, workshops for the parties and other stakeholders about the new model and the safe yield recalculation process, and stakeholder input on the recalculation. Chino Basin Watermaster, Status Report on Watermaster’s Safe Yield Recalculation. Submitted to the Court, April 11, 2014.

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Also, by this time the flush of bond money that had paid for the desalters and the recharge improvements was gone. The groundwater contamination from past overlying industrial and agricultural land uses would ultimately be backstopped financially by the appropriators too through desalter pumping and treatment – at least whatever was not paid for with money recovered from the responsible parties. Moreover, the promise of boundless economic growth in the Inland Empire region – which in the past had justified shifting these costs and risks onto the appropriators – had taken a beating in the 2008–2010 economic recession. Since the 1970s, the Appropriative Pool had been regarded and treated as the deep pockets of Chino Basin, whose budgets and financial capacity would rise forever due to population growth and the expansion of commercial and industrial activity. Coming out of the Great Recession, that rosy future seemed less certain. The ability of the appropriators to pass along increased costs to their ratepayers is politically constrained as well. For the public agencies in the Appropriative Pool – the municipal utilities and water districts – rate increases must be approved by their elected councils or boards of directors. The private water companies in the Appropriative Pool are subject to rate review by the Public Utilities Commission. Under any circumstances, rate increases can be difficult to approve; the belt-­ tightening of the recession and the prospect of diminished future rates of economic growth made it harder. What ensued was the negotiation of a Safe Yield Reset Agreement, or SYRA. The SYRA, it was hoped, would draw together multiple elements of concern to the Appropriative Pool members and do so in ways that would allow not only the Appropriative Pool Committee to support it but also the other two Pool Committees, the Advisory Committee, the Watermaster Board and ultimately the Court. The negotiation process began in earnest in July 2014 with biweekly meetings at which parties could present and discuss the issues of importance to them in implementing the Safe Yield Reset. In November 2014, the Watermaster Advisory Committee and Watermaster Board approved the initiation of a facilitated process, with Watermaster Counsel Scott Slater as facilitator, to resolve all issues related to the Safe Yield Reset over the following 6 months. That process stepped up the frequency of meetings to once per week. Not all of the parties to the Judgment participated in this facilitated process – for the most part it was the appropriators – but the rest of the parties were periodically informed of the issues being discussed and the progress of the facilitated process.6 At the end of May 2015, all but one of the parties engaged in the facilitated process had agreed to a statement of key principles. These were distributed to the rest of the parties and their input was requested at a Watermaster Board meeting on May 28, 2015. At their respective meetings on June 11, 2015, all three Pool Committees approved a document titled, “Safe Yield Reset Summary of Non-Binding Key Principles Derived from Facilitated Process.” In that document, the parties stated their intentions to continue negotiating in good faith to complete a binding Safe

6  Chino Basin Watermaster, Status Report on Watermaster’s Safe Yield Redetermination and Reset. Submitted to the Court on July 10, 2015.

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Yield Reset Agreement that could be forwarded to the Court along with a motion to the Court by October 1st to reset the Basin Safe Yield to 135,000 acre-feet per year. They also agreed that, for purposes of accounting for replenishment assessments, the new Safe Yield would be effective as of July 1, 2014 and not retroactive to 2011. No one’s assessments for the fiscal years 2013–2014 or earlier would be redone based on the new Basin Safe Yield amount. However, as the SYRA negotiations had progressed toward an agreement, they had also revealed the continued growth in the diversity of interests within the Appropriative Pool. There were and are substantial differences among the appropriators in terms of exposure to the possibility of renewed subsidence in the western half of the basin, falling groundwater levels in the east, those with growing water demands versus those with stable water demands, those with access to growing amounts of treated water from the desalters and those without, and those who had large balances in their water storage accounts to draw upon to offset the Safe Yield reduction and desalter replenishment obligation versus those who did not. These kinds of distinctions made negotiating the SYRA difficult and appropriators’ reactions to it disparate. Watermaster had submitted a status update to the Court on July 10, 2015 on the Safe Yield Reset process. On August 11, 2015, the City of Chino filed a “Supplement” to the Status Report. Chino’s supplement turned out to be a 15-page argument raising several objections to the safe yield redetermination process, as well as to the plans (as City of Chino perceived them) for addressing the reduction in Basin Safe Yield to 135,000 acre-feet and for translating that into the Operating Safe Yield for appropriators such as Chino. Among other points raised by Chino were claims that some negotiations had been conducted secretly, that implementation of the provisions in the Key Principles statement would result in Watermaster’s confiscation of water that the City of Chino had stored in the basin, and that the SYRA had morphed from a recalculation and reset of the Basin Safe Yield into an overhaul of the Chino Basin management program. Chino’s filing was the onset of a flurry of replies, objections, and motions that continued for the remainder of 2015 and into early 2016. Safe Yield Reset had indeed morphed into something else; it had morphed into a new fight. The Watermaster staff and other parties attempted to move the reset process forward through this period, but with the high threshold for agreement that is built into the Watermaster decision making process it was difficult. At their September 2015 meetings, the three Pool Committees reviewed the Safe Yield Reset Agreement and voted in favor of it, although the vote within the Appropriative Pool Committee was not unanimous. The Watermaster Advisory Committee voted in favor of the SYRA at its September 17, 2015, with the representative from the City of Chino voting no. The Watermaster Board voted 7-2 in favor on September 24th. The boards of directors of Inland Empire Utilities Agency and Three Valleys Municipal Water District also passed motions endorsing the Agreement. On October 23, 2015, the Watermaster submitted to the Court a Motion Regarding 2015 Safe Yield Reset Agreement and Amendment of Restated Judgment, Paragraph 6. The motion was accompanied by the SYRA with six exhibits, a Proposed Order

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for the Judgment amendment, and declarations from Watermaster general manager Peter Kavounas,7 assistant general manager Danielle Maurizio, and engineering consultant Mark Wildermuth. The Watermaster motion also included a proposed briefing schedule and a request for a hearing on December 18, 2015. The Watermaster motion triggered further objections, joinders, and other filings. On December 23rd the City of Chino filed a Motion to Permit Discovery – requesting the Court’s approval to take depositions from the other parties, in part because of Chino’s claim of secret deals having been made. That touched off another round of objections from other parties, the Agricultural Pool, Non-Agricultural Pool, and Watermaster. The hearing that had been requested by Watermaster for December 2015 was postponed to January 2016, then to February, then again and again. Amid this tempest, the time had come for reappointing the Watermaster Board to another term – the board’s term was due to expire on February 10, 2016. Under the Judgment, as described in Chap. 6, the Watermaster Advisory Committee makes the reappointment recommendation to the Court. In the heat of this particular moment, the Advisory Committee recommended the reappointment of the nine-member Watermaster Board for a 3-year term instead of the usual 5-year term. Watermaster Counsel filed this motion with the Court on December 18th, and Judge Reichert approved the 3-year appointment on January 22, 2016. As the time for a hearing with Judge Reichert on SYRA neared in early 2016, two related matters emerged from the swirl of issues surrounding the safe yield recalculation and reset. Neither of them concerned the 135,000 acre-feet per year figure  – perhaps surprisingly, no one lodged a disagreement that the Basin Safe Yield should be reset to that level, although the City of Chino argued for temporarily leaving the Safe Yield at 140,000 acre-feet until the issues about how to change it were resolved. The issues that came to the fore in 2016 were (a) how the reduction in Basin Safe Yield should be translated into the determination of Operating Safe Yield, and (b) how the revised Operating Safe Yield would affect the replenishment assessments owed by the Appropriative Pool members. The first matter came down to how land-use conversion claims by appropriators were to be handled in calculating their respective shares of Operating Safe Yield. The proposed SYRA combined land-use conversion claims with “Early Transfers” of unpumped Agricultural Pool water into a single adjustment factor for each appropriator to be used when determining their respective shares of the Operating Safe Yield. The parties who objected to that approach – particularly the City of Chino and Jurupa Community Services District, which had the largest land-use conversion

7  Peter Kavounas became Chino Basin Watermaster General Manager in 2012 and continues to serve in that position at this time. Upon Ken Manning’s departure as Watermaster CEO at the end of 2010, a new general manager was appointed who served only from February 2011 through November 2011. (The CEO title was dropped in the meantime and replaced with the more commonly used title of general manager.) Assistant General Manager Danielle Maurizio served two periods as Acting General Manager, December 2010–February 2011 and November 2011–January 2012. City of Ontario public works director Ken Jeske then served briefly as interim general manager until Peter Kavounas began.

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claims – pointed to the language in the 1978 Judgment providing that in an accounting of Operating Safe Yield due to a change in Basin Safe Yield, land-use conversion claims had priority over transfers. Watermaster and some of the other appropriators countered that the combined adjustment was in keeping with Peace II and had been used in the calculation of Operating Safe Yield shares for years without objection. The difference in the adjustment methodology would produce higher shares of Operating Safe Yield for some appropriators and lower shares for others – the City of Chino and Jurupa Community Services District had more acre-feet in land-use conversion claims than all other appropriators combined, with City of Ontario coming in third.8 Having a larger share of Operating Safe Yield means having the ability to pump more groundwater without incurring a replenishment assessment. Replenishment assessment calculation was the other issue. Each year, Chino Basin Watermaster calculates an assessment package for the Appropriative Pool that combines each member’s administrative assessments, replenishment assessments for that member’s pumping, and that member’s share of the replenishment obligation for pumping by the desalters. Although the Safe Yield Reset by itself did not change anything about the desalters, the fact that the change in Basin Safe Yield would produce a change in Operating Safe Yield had a knock-on effect: the division of the Operating Safe Yield among the appropriators is one of the components of the formula for allocating their relative shares of the desalter replenishment obligation. The other component is the appropriators’ “actual production,” and it turned out that appropriators had differing interpretations of what should be counted as “actual production.” The hearing before Judge Reichert on the Watermaster motion to approve the Safe Yield Reset Agreement and amend the Judgment took place on September 23, 2016. Ahead of that hearing, Judge Reichert issued a series of tentative rulings based on the mountain of briefs that had been filed over the preceding 11 months. He rejected Chino’s request for discovery and approved the 135,000 acre-feet per year Safe Yield reset figure. With respect to SYRA, however, he had concluded that its provisions changing the method for determining the Operating Safe Yield and allocating water to the Appropriative Pool from the Agricultural Pool were inconsistent with the provisions of the Judgment. More specifically, he agreed with Jurupa Community Services District and Chino that the priority given by the Judgment to land-use conversion claims had to be followed. Arguments presented at the September 23rd hearing led Judge Reichert to order some additional briefing but did not change his mind. On April 28, 2017, he issued final orders approving the change of Basin Safe Yield to 135,000 acre-feet but rejecting the SYRA (which by then was being referred to as “the 2015 SYRA”) to the extent that it was inconsistent with the Judgment provisions regarding the determination of Operating Safe Yield. He also approved July 1, 2014 as the effective date of the safe yield reset, with no retrospective

8  These shares were as of the beginning of the safe yield recalculation period, Fiscal Year 2010–2011. Chino Basin Watermaster, 2010–2011 Land Use Conversion Summary.

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accounting of replenishment assessments prior to that date. In addition, he ordered the next Basin Safe Yield Reset to be completed July 1, 2020 for the period from that date through June 30, 2030. In rejecting the 2015 Safe Yield Reset Agreement, Judge Reichert’s orders represented an improved replenishment assessment position of appropriators such as City of Chino and Jurupa Community Services District, and a poorer position for the upper-basin appropriators such as Cucamonga Valley Water District, the cities of Pomona and Upland, and Monte Vista Water District. None of them had many (if any) land-use conversion claims, because they weren’t located in the part of the basin that had been predominantly agricultural at the time of the 1978 Judgment. On June 23rd, Cucamonga Valley Water District filed a Notice of Appeal of Judge Reichert’s ruling on the 2015 SYRA, followed by the City of Pomona on June 26th and Monte Vista Water District on the 27th. These appellants contended that Judge Reichert’s rejection of the years-long practice of treating land-use conversion claims and early transfers of Agricultural Pool water as of equal priority amounted to an order changing the status quo among the parties, which exceeded the judge’s discretion in exercising continuing jurisdiction to administer and enforce the Judgment. The Fourth District (Division 2) of the California Court of Appeal granted the appellants’ request for an order to stay Judge Reichert’s ruling pending the outcome of the appeal. The City of Chino, Jurupa Community Services District, and the City of Ontario opposed the appeal. Thereafter, these six Appropriative Pool members – Cucamonga Valley, Monte Vista, and Pomona on one side, and Chino, Ontario, and Jurupa CSD on the other – began negotiating in the shadow of the appeals court. Through numerous requests for extensions and rescheduling of briefings and hearings, the six parties continued their bargaining through the rest of 2017. In January 2018, they produced and distributed to the other parties and Watermaster a “Chino Basin Safe Yield Reset and Accounting Compromise Term Sheet.” They agreed that land-use conversion claims had priority over transfers (a concession from Cucamonga Valley, Monte Vista, and Pomona), and offered another method for calculating desalter replenishment obligations of the Appropriative Pool members. Among other things, this involved speeding up the allocation of Basin Re-Operation water from 10,000 acre-feet per year to 12,500 acre-feet per year until 2025, then dropping it to 5000 acre-feet per year from 2026 through the end of the Peace Agreement in 2030, and allocating an annual portion of stored Non-Agricultural Pool water9 (735 acre-feet per year) to the desalters. Most of 2018 was spent lining up support for the compromise among the other Chino Basin parties and stakeholders and working through a jurisdictional conundrum. The agreement of the other parties and stakeholders was essential to getting

9  By this time, two Appropriative Pool members  – Monte Vista Water District and the City of Ontario  – were also members of the Non-Agricultural Pool. Changes in Pool membership are discussed in the next chapter.

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the six parties’ compromise10 approved by the Pool Committees, Advisory Committee, and Watermaster Board and ultimately submitted to Judge Reichert. There were some minor adjustments to specific points in the agreement, but the compromise held together. The jurisdictional puzzle was that the compromise entailed amending some provisions of the Peace Agreement, Peace II, the Restated Judgment. The Court of Appeal did not have jurisdiction to amend the Judgment or these other agreements; that belonged to Judge Reichert. However, since the Court of Appeal had stayed Judge Reichert’s orders on the Safe Yield Reset Agreement, it was not clear that Judge Reichert could take action on the compromise agreement. The appellants did not want to dismiss the appeal until the compromise agreement was approved, but the appellees countered that the compromise agreement could not be approved until the appeal was dismissed and the case returned to Judge Reichert. The six parties convinced the appeals court to grant a “limited remand” of the case to Judge Reichert, long enough for him to hear and issue a ruling on the compromise agreement. At a hearing before Judge Reichert on December 5, 2018, there was some confusion: Judge Reichert had not been notified of the limited remand. He set a date for hearing the parties’ request to decide on the compromise agreement for March 15, 2019. The six parties presented a Motion to Judge Reichert on January 15, 2019, and Chino Basin Watermaster filed a Motion the same day also requesting the Court’s approval of the compromise. The Non-Agricultural Pool filed a Motion concurring in the use of stored Non-Agricultural Pool water for the additional desalter replenishment obligation. The Agricultural Pool filed a joinder to the Watermaster’s Motion but not the six parties’ Motion, because the Watermaster Motion included language that the Agricultural Pool insisted on regarding the recalculation procedure that would be used in the upcoming 2020 Safe Yield Reset. Following the hearing on March 15th, Judge Reichert approved the motions from Watermaster and the Non-Agricultural Pool. On March 27th, the appellants filed a request with the Court of Appeal for dismissal of their appeal. The appeals court granted the dismissal on April 2, 2019. The 2010 Safe Yield Reset was completed – 15 months before the 2020 Safe Yield Reset was due.

13.2  The 2020 Safe Yield Reset Wildermuth undertook the 2020 Safe Yield recalculation in 2019, using basin conditions for 2010 through 2019 as the base period. He presented the parties and other stakeholders with a recalculated Basin Safe Yield of 131,000 acre-feet per year to take effect July 1, 2020 – a further reduction of 4000 acre-feet per year from the 10  The six parties participating in the appeal became known by various names – the “appeal parties,” the “settling parties,” and (informally) the “six-pack.” They preferred “settling parties” but that did not always stick.

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2010 Safe Yield. In order to get the 2020 Safe Yield Reset to Judge Reichert by July 1st, it would have to be approved by the three Pool Committees, the Watermaster Advisory Committee, and the Watermaster Board by their June 2020 meetings at the latest. Watermaster Counsel prepared a Motion to Reset the Safe Yield to submit to Judge Reichert. The Non-Agricultural Pool approved the 2020 Safe Yield Reset. The deliberations in the Agricultural and Appropriative Pools were much more protracted. Each Pool Committee requested review of the Safe Yield recalculation by their own consultants. During April through June 2020, the Agricultural Pool held three special meetings in addition to their three regular meetings, and at least two of the special meetings were about the 2020 Safe Yield Reset. During the same 3  months, the Appropriative Pool held nine special meetings in addition to their regular monthly meetings, and the 2020 Safe Yield Reset was a subject of at least five of those special meetings.11 In a letter from the Appropriative Pool Committee to Watermaster General Manager Peter Kavounas on May 20, 2020, Pool Committee Chair John Bosler informed Kavounas that “a majority of the Appropriative Pool Committee does not oppose the proposed 131,000 acre-feet per year 2020 Safe Yield Reset.” Clearly this was not the same as voting to approve, but the statement of non-opposition cleared the way for the rest of the process – consideration by the Advisory Committee and Watermaster Board – as long as the other two Pool Committees did not object. The Agricultural Pool Committee did object. At its regular monthly meeting on June 11, 2020, the Agricultural Pool Committee voted to file an Opposition to Watermaster’s Motion to Reset the Safe Yield. The Pool Committee expressed reservations about the method by which the Basin Safe Yield had been calculated. The City of Chino also filed an Opposition, raising other concerns about the base period used in the recalculation and whether all alternative future scenarios had been taken into account. The Advisory Committee and the Watermaster Board, at their respective June 2020 meetings, voted to approve the 2020 Safe Yield reset at 131,000 acre-feet per year, and the Watermaster submitted a motion to Judge Reichert requesting approval. After a hearing on July 10, 2020, the Judge approved the Safe Yield Reset and rejected the Agricultural Pool’s and City of Chino’s opposition motions.

 Special meetings of the Pool Committees do not have the same agenda, minutes, and audio recording protocols as their regular monthly meetings. The subject matter of special meetings usually must be inferred from any references to them made during the regular monthly meetings. For some special meetings this is very clear but not for others.

11

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13.3  A  Storage Management Framework and a New Chino Basin Water Bank Chino Basin may have the greatest water storage potential of any groundwater basin in Southern California. The underground capacity is huge, and according to estimates made at the time of the 1978 Judgment, approximately two million acre-feet had been withdrawn in excess of recharge since 1921. Both the Chino Basin parties and stakeholders (such as the municipal water districts) and entities outside the basin (most notably the Metropolitan Water District) have for decades eyed the basin’s storage capacity as the tremendous asset it is and can be. As Chap. 7 and subsequent chapters have shown, since the 1980s storage has also been a source of recurring tension and occasional conflict in Chino Basin. Up to a point, accumulating stored water in the basin is a general advantage, buffering the water users against drought or other interruptions of water supplies, raising groundwater levels and therefore reducing pumping lifts and costs, and even (depending on the stored water) enhancing groundwater quality. Beyond that point, further accumulation of stored water can result in groundwater levels that are too high in parts of the basin, mixing of the groundwater with contaminants in the overlying soils, and accelerating losses of water from the southern and eastern areas of the basin to the Santa Ana River and downstream. Furthermore, although it has been a frequent topic of study and discussion, no consensus has been reached in the past about the precise location of that dividing line below which added storage is good and beyond which added storage is bad. In Chino Basin management the language of storage reflects another aspect of the ambivalence about it. There is “local storage,” which means the accumulation of stored water by the parties themselves, in stored water accounts that the Chino Basin Watermaster keeps track of and reports on for everyone to see every year. Parties add water to storage, withdraw water from storage, and transfer stored water among themselves, with Watermaster keeping the accounts. They can use water in their storage accounts to offset replenishment obligations, among other things.12 As a general matter, “local storage” is regarded as a good thing for everyone and a highly desirable aspect of having rights in the basin. There are limits, however. There is a basinwide limit of 600,000 acre-feet on the combined amounts that parties can have in their storage accounts.13 That limit has reflected a widely, though not uniformly, held concern that more than 600,000  “In the last several years, about 80 percent of the replenishment obligation incurred by the parties has been satisfied from stored water. Parties can accumulate stored water in individual accounts, and since the Judgment was implemented, the Judgment parties have accumulated about 450,000 AF in storage” (Wildermuth & Kavounas, 2019: 29). 13  In the OBMP and Peace Agreement, there was also a cap of 50,000 acre-feet on individual storage accounts. In 2007 as part of the Peace II negotiation, the Second Amendment to the Peace Agreement replaced the 50,000 acre-feet cap with a 100,000 acre-feet cap for a 10-year period. Now that the 10-year period has expired, there are no current provisions for individual storage account limits. 12

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acre-­feet in all parties’ storage combined may come too close to the point beyond which accumulated storage starts to have deleterious effects for at least some parties. The Chino Basin Watermaster is committed under the OBMP, Peace Agreement, and Peace II to protect any party from Material Physical Injury, and one potential source of injury is excessive stored water because of the negative prospects mentioned above. The other way in which storage is considered in Chino Basin management was referred to in the 1980s and 1990s as “conjunctive use storage” but now is more commonly referred to by the parties and stakeholders as “storage and recovery projects.”14 Storage of this sort is usually a larger-scale endeavor, involving the “banking” of surplus surface water underground in the basin for storage and later withdrawal. Non-parties may be able to participate in this kind of water storage in Chino Basin.15 Metropolitan Water District has long been interested, and on occasion participated, in storage and recovery projects in Chino Basin. One was a source of the controversy in the late 1980s and one of the subjects of the moving parties’ lawsuit discussed in Chap. 7. A potential agreement between MWD and Watermaster was being worked out in the early 1990s (when the Watermaster Board was the Chino Basin Municipal Water District Board) but was scuttled in light of opposition from some of the parties and contributed to the conflict over basin governance described in Chap. 8, as well as MWD’s discovery of the South Archibald (a/k/a Ontario Airport) contamination plume as described in Chap. 12. In 2003, after the basin governance controversy had calmed and the OBMP and Peace Agreement were in place, a new storage-and-recovery project was launched under MWD’s Dry-Year Yield (DYY) program. This project involved MWD working primarily through IEUA and Three Valleys Municipal Water District and under an agreement with Chino Basin Watermaster, providing up to 100,000 acre-feet of additional recharge water to Chino Basin over a period of 4 years if it were available, and then being able to “call” that water in dry years – meaning that local parties would recover that stored water from the basin instead of receiving matching amounts of imported water from MWD. Such an arrangement helps guarantee stability of supply to the local agencies while reducing demand on MWD’s system during dry years. Judge Gunn approved the DYY agreement between Watermaster, MWD, and the two MWD member agencies (IEUA and Three Valleys) in 2004. Over the next 3 years, MWD directed extra recharge water to Chino Basin – the DYY Agreement made this institutionally possible and the expansion of recharge capacity in the basin described in Chap. 10 made it physically possible. In the nick of time, too – the next 3 years (2008–2010) were drought years and the stored water was used by Chino Basin parties while MWD curtailed imported water deliveries to the basin.  The terminology appears in many places, including Peace Agreement section 5.2, which addresses “Local Storage” in Section 5.2(b) and “Storage and Recovery” in Section 5.2(c). 15  However, Paragraph 12 in the Chino Basin Judgment directs the Watermaster, in its regulation of the storage capacity in the basin, to give preference to storage by parties for use within the basin over storage for potential export from the basin. 14

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Experience in Chino Basin with storage and recovery has therefore been mixed. The DYY program was successfully executed and provides an example to which advocates of storage and recovery projects can point. The experience of the 1980s and early 1990s tells a different story that still resonates in others’ ears – the temptation to “rent out” the basin is a kind of siren song, and utmost caution is required. With exceptions, these lessons have aligned with the views of the Appropriative Pool and the Agricultural Pool, respectively. Not all but many in the Appropriative Pool would like to see more utilization of the basin for storage and recovery, and not all but many in the Agricultural Pool contend that the appropriators are too strongly motivated by a desire to monetize the basin storage capacity. In the absence of a firm agreement as to how much storage is too much, the differences sometimes appear philosophical, but they have practical consequences which recently have played out even regarding local storage. In 2018, the Agricultural Pool began contesting the creation of additional storage agreements and transfers of stored water. In its contest, the Agricultural Pool advanced two primary arguments. One was that Chino Basin lacked a comprehensive storage management plan to guide Watermaster decision making when Watermaster receives applications for storage or for transfers of stored water. The second thrust of the Agricultural Pool’s argument is that the parties’ stored water accounts are partially filled with “phantom water.” This has not been proved or disproved, but the argument goes like this: because the real safe yield of the basin was lower than the official Basin Safe Yield for many years, much of the supposedly under-produced water that parties have been banking in their stored water accounts has been fictional. If a pumper has a share  – say, 2000 acre-feet per year  – of a declared Basin Safe Yield of 140,000 acre-feet per year and produces only 1800 acre-feet, that pumper gets to count the 200 acre-feet difference in a local storage account. But what if the actual safe yield was less than 140,000 acre-feet per year? Was there really 200 acre-feet of water left in the basin when that party under-­ produced its 2000 acre-feet allocation, or is this just an accounting artifact? The concern raised by the Agricultural Pool has been that, over a couple of decades, dozens of pumpers have been accumulating tens of thousands of acre-feet this way but the water in their storage accounts may not really correspond to water in the basin, hence the term “phantom water.” While Non-Agricultural Pool members have stored water accounts, the greatest volume of stored water by far belongs to members of the Appropriative Pool. In the interior world of Chino Basin politics, therefore, the Agricultural Pool’s phantom water argument is another bone of contention between the Agricultural Pool and the Appropriative Pool. Appropriative Pool members are quite protective of their stored water accounts, not least because they can use them to offset replenishment obligations. Appropriative Pool members also tend, with exceptions, to be more supportive of promoting the use of basin storage capacity for storage and recovery projects. The Agricultural Pool’s contests of stored water accounts and its claim that at least some of the stored water is not really there has been perceived by several Appropriative Pool members as an impediment to progress in the management of the basin.

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Despairing of getting the Chino Basin Watermaster to initiate storage and recovery projects because of the Agricultural Pool Committee’s ability to withhold approval, some members of the Appropriative Pool along with Inland Empire Utilities Agency launched a new joint-powers agency in 2018 named the Chino Basin Water Bank. They cannot change the fact that the Judgment makes water storage in Chino Basin subject to Watermaster regulation, but they may be able to work outside of the Watermaster structure to develop one or more projects. Under current circumstances, Watermaster would have a difficult time doing even that. Down the road, a storage and recovery project can be presented to Watermaster where it will have to go through the complex, multi-step approval process, but at least there would be a proposal to debate and, if it were attractive enough, perhaps even get approved. Watermaster’s recent approach to the storage issue has been to try to create a factual basis upon which a consensus might be built. In 2018, Watermaster launched a Storage Framework Investigation. In usual Watermaster fashion, the Investigation process involved multiple workshops to garner stakeholders’ priorities, preferences, and concerns regarding storage, iterated and interwoven with an engineering study using the basin model to provide the stakeholders with data and alternative scenarios. The goal was articulated to be the creation of a “storage management framework” rather than a storage management policy or plan; the framework would provide a way of thinking about what the basin can and cannot do and what the consequences of different quantities and locations of storage projects may be. In the eight workshops conducted as part of the Storage Framework Investigation, parties were asked to project the amounts of pumping and storage that would be needed in order to fulfill their water supply needs over the next several decades. The Watermaster staff and Wildermuth combined these to develop a projection of the amount of storage space the parties would want to be able to use from 2019 to 2056. The parties’ combined maximum storage estimates amounted to approximately 750,000 acre-feet. The Storage Framework Investigation used the basin model to explore the effects of storing up to 1 million acre-feet of water in the basin, which could allow for one or more additional storage and recovery programs. The modeling results indicated that Hydraulic Control could still be maintained under this scenario and there did not appear to be additional land subsidence effects. On the other hand, there would be impacts on the movement of groundwater contamination plumes in the basin, and there could be pumping-rate impacts on some wells. These negative effects would have to be mitigated in order to avoid material physical injury to any of the parties. Those possible mitigation measures would need to be included in the development of a Storage Management Plan.16 Here it is important to note two elements of the context in which this re-­ examination of the storage possibilities in Chino Basin has taken place. First, this has been happening since Basin Re-Operation and the attainment of Hydraulic Control. Watermaster, the municipal water districts (especially IEUA and WMWD),

16

 Chino Basin Watermaster, 42nd Annual Report, Fiscal Year 2018–19, pp. 4–5.

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and many of the parties have spent years and millions of dollars on a combination of projects and management actions to lower groundwater levels, extract contaminated water from the basin, and limit the loss of water from the basin to as close to zero as feasible. Therefore, adding potentially large quantities of water to the basin must be approached cautiously, lest it in some ways undo that endeavor that was so central to the OBMP, the 2004 Basin Plan, and Peace II. Second, the accumulation of stored water in the parties’ local stored water accounts has reached the current 600,000 acre-feet cap.17 It is possible that Watermaster will have to start rejecting applications for additional stored water in local accounts. Some parties’ enthusiasm for opening basin storage capacity to non-parties may be dimmed if it coincides with the imposition of restrictions on their own ability to store water. The storage workshops led to the completion of a Storage Framework Investigation Report in 2019. Watermaster then initiated a second process of stakeholder involvement in the development of a Storage Management Plan that Watermaster could use when evaluating future storage proposals, whether for changing the regulation of local storage or for assessing the benefits and risks of a proposed storage and recovery project. That process led to the production in December 2019 of a 2020 Storage Management Plan – Final Report. Among the provisions in the Plan was an increase in the cap on parties’ combined accumulated storage, above the current 600,000 acre-feet limit, so parties would be allowed to continue to accumulate water in their storage accounts. The Storage Management Plan was reviewed and debated through the first 6 months of 2020. It too became entangled in the fight between the Agricultural Pool and the Appropriative Pool – the proposed Plan appeared to have been just favorable enough to expanded storage to draw opposition from the Agricultural Pool, but not favorable enough to be supported strongly by the Appropriative Pool. The NonAgricultural Pool Committee voted to approve it at the Committee’s regular monthly meeting in May 2020. The Appropriative Pool Committee held special as well as regular monthly meetings where the Storage Management Plan was discussed, and in May adopted a resolution giving the Plan a very qualified and lukewarm endorsement which included a statement that parties to the Peace Agreement are not bound by the Storage Management Plan and a characterization of it as “only a Watermaster guidance/planning document.” At its May meeting the same day, the Agricultural Pool voted to oppose the Storage Management Plan. In June 2000, a majority of the Watermaster Advisory Committee voted to advance the proposed Plan to the Watermaster Board, and the board voted 7-2 to approve it (the two no votes coming from the Agricultural Pool representatives). The next step will be the development of an implementation plan, specifying actions to be taken by Watermaster, the parties, and other stakeholders under the Storage Management Plan. In the meantime, basin storage remains a subject of the Agricultural Pool contest.18  “As of this writing, Watermaster is projecting that portion of the Basin in which the parties to the Judgment may store their water is nearly full.” Chino Basin Watermaster, Status Report on the Optimum Basin Management Program Update, March 13, 2020. 18  Under Watermaster procedures, if a contest filed by a Pool Committee cannot be resolved through meeting and negotiation, it is presented and argued before a hearing officer selected from a list of potential hearing officers approved by the parties. That process was underway at the time of this writing. 17

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13.4  T  he 2020 Optimum Basin Management Program Update As stated at the beginning of this chapter, resetting the Basin Safe Yield is a core aspect of adaptive groundwater management. Revisiting the OBMP itself would be a comparably significant undertaking. At the beginning of 2019, the Chino Basin Watermaster launched the development of an Optimum Basin Management Program Update (the 2020 OBMPU). Eight “listening sessions” with basin stakeholders were convened from January through December 2019, to elicit their views on the highest priority problems and goals for the basin in the future, impediments to the achievement of those goals, and projects or activities that could overcome those impediments and advance progress toward the goals.19 Four overarching basin management goals have emerged in this process that are now the stated goals of the updated Optimum Basin Management Program: (1) enhance basin water supplies, (2) protect and enhance water quality, (3) enhance management of the basin, and (4) equitably finance the OBMP. Especially noteworthy was a figure (Fig.  13.1) presented and discussed at the first two listening sessions, illustrating perceived drivers of change in the present and for the foreseeable future, trends underway in the basin, and the implications of

Fig. 13.1  Drivers, trends, and implications figure from 2020 OBMPU process. (Source: Chino Basin Watermaster)

 Agendas, presentations, and attendance sign-up sheets for the eight listening sessions are available at www.cbwm.org

19

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those drivers and trends for the future of the basin. Attendees were asked to consider those interrelated phenomena, and to articulate their own issues, wants, and needs for basin management. At subsequent listening sessions, the issues, wants, and needs inventory became a basis for attendees’ identification of actions they believed might advance their wants and needs in the context of the current trends and drivers of change and their implications. In November 2019, a draft 2020 OBMPU report was presented to the participants in time for the eighth listening session in December. The Storage Management Plan was also presented for discussion at that listening session. By January 2020, a final 2020 OBMPU report was published, followed in February by a draft 2020 OBMPU Implementation Plan. As with the 2000 OBMP Implementation Plan, IEUA agreed to initiate a CEQA process for the development of a Program Environmental Impact Report (PEIR) for projects being considered under the 2020 OBMPU. Not surprisingly, further progress on the 2020 OBMPU and Implementation Plan slowed somewhat after that, while the 2020 Safe Yield Reset and 2020 Storage Management Plan were also under consideration.20 Drafting sessions with stakeholders to develop the 2020 OBMPU Implementation Plan report into a final version were supposed to begin March 16, 2020, but were interrupted and delayed by stay-at-home orders issued by the Governor of California that month. The processes of resetting and updating described in this chapter relate directly to the adaptive groundwater management program in Chino Basin. They reveal both how challenging adaptive management is in practice, and how thoroughly embraced the adaptive approach has become. In August 2019, the Watermaster submitted this statement to Judge Reichert: The OBMP Implementation Plan was initially adopted more than 20 years ago, and it was last amended more than a decade ago. Since that time, Watermaster’s understanding of the Basin has improved, and the present understanding of the hydrology and hydrogeology of the Chino Basin has led to the identification of new water management challenges. Climate change, salt and nutrient management, and environmental considerations have intensified water management challenges. Changes in the law, increased interest in Chino Basin management, and improved science and technology have led to the refinement of the Basin management goals.21

 The relationship among the 2020 Storage Management Plan and the 2020 Optimum Basin Management Program Update became a topic of discussion in April and May. The Watermaster stated in a March 13, 2020 status report to the Court that the 2020 OBMPU Report was “informational and does not represent a binding commitment among the parties to the Judgment,” but also referred to “the integration of the Storage Management Plan as part of Program Elements 8 and 9 of the 2020 OBMP Update.” As one Advisory Committee member put it, this raised a question of whether a vote in favor of the 2020 OBMPU Report was also a vote in favor of the 2020 Storage Management Plan. The Appropriative Pool Committee’s comments in its May 14, 2020 resolution on the 2020 Storage Management Plan portrayed both documents as non-binding. 21  Chino Basin Watermaster, Status Report Regarding Update to the Optimum Basin Management Program. Submitted to Judge Stanford E. Reichert, August 6, 2019, p. 3. 20

Reference

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How to address those challenges remains in development. The statement itself, though, suggests how deeply embedded the concept of adaptive groundwater management has become in Chino Basin. The basin has changed in part because of changes in its management, management will need to change because of changes in the basin, and the key to both is the evolving understanding of the basin that has resulted from serious and sustained efforts at learning.

Reference Wildermuth, M., & Kavounas, P. (2019). Framework for Chino Basin’s future: Investigating potential impacts of storage and recovery projects. Source, 33(2), 28–32.

Chapter 14

The Governance and Administration of Chino Basin Groundwater Management

Abstract  Adaptive groundwater management in Chino Basin entails a highly polycentric set of institutional arrangements that involve multiple local, state, and federal agencies as well as numerous private entities. This chapter presents the organizational and interorganizational structures and relationships involved in the governance and administration of Chino Basin. It begins with the ways in which information gathering, reporting, and accountability practices have been institutionalized in Chino Basin. It includes the stakeholder engagement and decision making processes that have developed in the basin, with specific focus on the practices of the Chino Basin Watermaster. In addition, this chapter addresses California’s Sustainable Groundwater Management Act (SGMA) enacted in 2014: what if anything it means for Chino Basin, and what lessons the Chino Basin experience has to offer for the nearly 100 other groundwater basins in California where management institutions and plans are being implemented currently. Keywords  California · Chino Basin · Groundwater · Chino Basin Watermaster · Water districts · Monitoring · Pool Committees · Polycentric governance · Stakeholder participation · Adaptive management · Accountability · Sustainable Groundwater Management Act (SGMA)

Groundwater management in Chino Basin is not simply an accounting of inflows and extractions. Since the 1970s, and especially since the 1990s, Chino Basin’s management regime has grown into a complex and multifaceted system that includes: • managing groundwater recharge by zone and by water source in order to achieve a balance among groundwater level, water quality, and cost objectives; • metering and measuring groundwater extraction by well, by party, by zone, and by Pool in order to manage groundwater levels and movement, land subsidence, water quality, and rising water outflow; • supporting and sustaining the ability of multiple local governments and private companies to provide reliable drinking water supplies, sanitation, fire suppression, flood control, and other services throughout the basin;

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_14

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• accounting for and incorporating recycled water into water supply and water use in ways that maximize its reuse while tracking water quality characteristics and taking advantage of opportunities to use better-quality stormwater and imported water when available; • operating a complex of groundwater treatment facilities  – the desalters  – that remove long-accumulated contaminants, intercept plumes of hazardous chemicals, and produce treated usable water; • maintaining sufficient water to support and sustain critical habitat for endangered species and one of the largest remaining green spaces in the region; • participating in regional projects and programs for the Santa Ana River watershed; • keeping track of individual storage accounts and cumulative stored water amounts in order to take advantage of the benefits of underground storage capacity while minimizing risks of lost stored water and high groundwater levels in some locations; • reviewing and accounting for transfers of water rights and stored water; • recording land-use changes and conversions of associated pumping rights; • calculating and collecting everyone’s assessments, paying for projects and programs, and accounting for all revenues and expenditures in a public accounting structure that is regularly audited; • scheduling, facilitating, and recording meetings of all committees and boards, and complying with public meeting and public records laws; • producing reports for the Court, parties, and the public on basin conditions and all basin management activities; and • updating, adjusting, and resetting all of the above as conditions change. This chapter reviews how these multiple missions are carried out. No one organization performs all of them. Although only the Judgment, the Court, and the Watermaster cover the entire basin, the governance and administration of Chino Basin groundwater management involves a network of interdependent bodies. The chapter first discusses the information that is generated to support and evaluate basin management, then turns to reporting, accountability, and stakeholder involvement, followed by a review of the many agencies that are involved in Chino Basin management and brief highlights of who does what, and finally a discussion of the basin-scale governance and decision making processes of the Watermaster.

14.1  T  he Information Foundation of Chino Basin Management Data collection, analysis, and sharing constitute a common and critical denominator for all of the functions listed above. The monitoring operation is itself a major enterprise involving a web of locations, samples, data feeds, records, and visualization. Well production data are gathered via meters on wells, and groundwater level data are collected through an extensive network of monitoring wells. Most

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production wells in Chino Basin are equipped with meters. The Watermaster’s groundwater level monitoring program now includes more than 1200 wells distributed throughout the basin. Groundwater levels at approximately 250 wells are monitored directly by Watermaster staff, and levels at the remaining wells are reported to Watermaster by the well owners. Desalter production is recorded and reported by the Chino Desalter Authority. Watermaster also records and reports the amounts and sources of water that are directed to the groundwater recharge basins. Watermaster personnel use pressure transducers or staff gauges to measure water levels at recharge sites during the recharge operations. Recycled water production data are recorded and reported by IEUA. IEUA and Three Valleys Municipal Water District report amounts of imported water purchased from MWD. As explained in Chaps. 10 and 11, the quality as well as quantities of water recharged to Chino Basin is important. Water quality data for the imported State Project water recharged in the basin are derived from MWD. Recycled water quality measures for the water produced at the treatment plants are provided by IEUA. Storm water is the third major component of recharge water in Chino Basin, and Watermaster monitors the storm water quality in the creek channels after rainfall events. IEUA and the Watermaster collect weekly and biweekly water quality samples from the recharge basins to capture the overall water quality values for the recharge water that is composed of the varying blends of imported, recycled, and storm water. In addition, monitoring wells located downgradient from the recharge basins are sampled for groundwater quality every two weeks.1 The monitoring program for groundwater quality across all of Chino Basin now encompasses more than 1300 wells from which samples are taken. Not every well is sampled every year, but the rotation schedule is such that, for example, 828 wells were sampled in fiscal year 2016.2 Watermaster staff and Wildermuth Environmental look for opportunities to gain more monitoring locations. For instance, one side effect of rapid development and land-use change can be the abandonment or destruction of wells. From a basin management perspective, it can be important to try to preserve at least some of those wells so they can be used as monitoring wells. The additional “data points” are valuable and also help to avoid drilling new wells just for monitoring. Therefore, the Chino Basin Watermaster has negotiated with parties in the basin that were contemplating abandoning or destroying wells in  locations that might be favorable for groundwater quantity and/or quality monitoring programs. For example, the Watermaster took responsibility for three wells previously operated by Alcoa, and 16 wells on the grounds of the California Institution for Men, integrating them into the Watermaster’s monitoring well network.

1  Chino Basin Watermaster, 2007 Supplement to the Implementation Plan Optimum Basin Management Program for the Chino Basin. October 25, 2007. This document was also Attachment D to Watermaster Resolution 07–05. 2  Chino Basin Watermaster, State of the Basin Report 2016.

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Ground level surveys for measuring land subsidence are conducted by Watermaster. As noted in Chap. 10, remotely sensed InSAR data are collected and compared with the ground level survey data. Vertical and horizontal land surface changes are monitored by Watermaster using extensometers, the first of which was installed near the Chino ground fissuring site in the early 2000s and the newest of which was installed in the City of Pomona in 2020. In addition, pressure transducers and data loggers have been installed at selected wells in Chino, Pomona, and Monte Vista Water District to collect data that aid in understanding the groundwater dynamics that may be associated with subsidence in that portion of Management Zone 1 (MZ-1).3 Several agencies, including Chino Basin Watermaster, monitor Santa Ana River flows and water quality. Watermaster’s Santa Ana River monitoring activities focus particularly on the reach of the river that crosses the basin and exits at Prado Dam, to determine where and to what extent the river is gaining flow from rising groundwater and where and to what extent the river is losing flow into the groundwater basin. Implementing effective adaptive management in Chino Basin has both required and benefited from advanced information technology. The installation of more sophisticated devices for measuring and recording everything from groundwater movement to land subsidence to water quality has necessitated a large investment of funds and the acquisition of skilled personnel. The Chino Basin Watermaster’s consulting engineers developed a data visualization tool named HydroDaVE – which stands for Hydrologic Database and Visual Explanations. HydroDaVE is a custom-­ built database developed by Wildermuth Environmental for use in Chino Basin and other locations where the firm provides consulting services. It layers data from multiple databases on a geographic information system platform and, among other things, allows water agency managers and board members to view representations of the movement of water underground, the location and shape of contamination plumes, and the effects of management actions such as increased or decreased pumping at certain sites within the basin. Overall, the monitoring system in Chino Basin tracks the following data: Precipitation Temperature Evapotranspiration Land Use Changes Active Production Wells Groundwater Production by Well Desalter Well Production Imported Water Deliveries Imported Water Used for Recharge Wastewater Treatment Plant Output 3  Chino Basin Watermaster, 2007 Supplement to the Implementation Plan Optimum Basin Management Program for the Chino Basin. October 25, 2007. This document was also Attachment D to Watermaster Resolution 07-05.

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Deliveries of Recycled Water for Direct Use Recycled Water Used for Recharge Streambed Infiltration Wet Water Recharge Desalter-Induced Recharge Net Recharge Cumulative Change in Storage Santa Ana River Flow at Riverside Narrows (into Chino Basin) Santa Ana River Flow at Prado Dam (out of Chino Basin) Groundwater Elevation Contours Change in Groundwater Elevation Contours State of Hydraulic Control Groundwater Levels vs Precipitation, Production, and Recharge by Management Zone Ground-level Motion Land Subsidence Groundwater Exceeding MCLs TDS Nitrate TDS Trends by Management Zone Nitrate Trends by Management Zone Perchlorate Total Chromium Hexavalent Chromium Arsenic Trichloroethylene (TCE) Tetrachloroehtylene (PCE) 1,2,3-Trichloropropaane (1,2,3-TCP) Chino Airport TCE Plume South Archibald TCE Plume GeoTracker and EnviroStor Sites Areal extent of riparian vegetation in Prado Basin Greenness of riparian vegetation in Prado Basin Groundwater levels in Prado Basin

14.2  Reporting and Accountability Water management and administration in Chino Basin entails many components, and all or nearly all of them including periodic reporting. The extensive set of reports produced monthly, quarterly, semi-annually, annually, biennially or on other schedules represents a system of accountability. Chino Basin management entities – especially Watermaster, the Pool Committees and Advisory Committees, the municipal water districts, and the water service providers – have responsibilities to the public, the Court, the Regional Board and the State, and federal agencies. Reporting

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is a documentation of the performance of those responsibilities and plays an especially important role in light of the complex multi-organizational structure of governance and administration in Chino Basin. While it is certain that some individuals involved in Chino Basin feel as though they attend meetings all the time, and with reason, it is also true that no one can be present for every meeting, every discussion, and every decision that takes place regarding Chino Basin and its management. The preparation and publication of reports make it possible – still daunting, but at least possible – for interested persons to review issues and actions they otherwise would have missed. Furthermore, regular periodic reporting creates a cumulative archive and timeline of what happened when and how things have changed over time. What follows is a listing of many, but by no means all, of the reports generated about Chino Basin. The most comprehensive report produced about Chino Basin and its management is the biennial State of the Basin Report, which is prepared by Wildermuth Environmental for Chino Basin Watermaster, which publishes it to all constituencies and the interested public through its website.4 The prototype for the State of the Basin Report was the survey of basin conditions in Section 2 of the OBMP Phase I Report in August 1999. With the adoption of the OBMP and Peace Agreement in 2000, the Watermaster committed to preparing that kind of comprehensive State of the Basin Report every 2 years. The first one was completed in October 2002. In addition to the current data presented for that year, each State of the Basin Report contains two sets of comparisons. Current data are compared with two years prior, i.e., with the previous State of the Basin Report. Current data are also compared with baseline data from July 1, 2000, representing the beginning of the Optimum Basin Management Program. Readers can therefore compare measures of current basin conditions with corresponding measures at the time OBMP implementation began. Earlier data are also included for some items, such as land use and groundwater elevations, allowing for comparisons back to the 1978 Judgment or before. Other reports prepared and published by the Chino Basin Watermaster include: • an annual report for the public and the Court, summarizing major Watermaster activities of the preceding fiscal year (July 1 – June 30) and summary measures of basin conditions and water use, including groundwater production by party, water transfers and storage, plus Watermaster financial accounts and annual audit report; • the Watermaster budget, as adopted and as amended during the fiscal year (if applicable), produced for the Court and parties and publicly available;5 • what is called the annual “assessment package,” detailing the administrative and other assessments levied on the parties, by party, produced for the Court and the parties and publicly available; • semi-annual OBMP status reports, prepared for the Court and publicly available;  These are found at http://www.cbwm.org/rep_engineering.htm  See http://www.cbwm.org/rep_finance.htm

4 5

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• monthly reports of groundwater recharge, by recharge water source (storm water, imported water, or recycled water), by recharge basin, and by management zone, produced for the parties and publicly available; • annual reports on compliance with the Recharge Master Plan Update, produced for the Court and the parties and publicly available; • annual reports of the Ground Level Monitoring Committee on subsidence and the implementation of the Subsidence Management Plan for Management Zone 1, produced for the Court and the parties and publicly available; • annual reports of the Prado Basin Habitat Sustainability Committee on groundwater and habitat conditions in the Prado Basin, produced for the Regional Water Quality Control Board, federal agencies, and the parties and publicly available; • annual streamflow monitoring reports on flow measurements in the creek channels and the Santa Ana River, produced for the Regional Board and the parties and publicly available; • quarterly reports (by Watermaster and IEUA collaboratively) on the status of hydraulic control, recycled water reuse, and other aspects of compliance with the 2004 Basin Plan, produced for the Regional Board and publicly available; • annual reports (by Watermaster and IEUA collaboratively) on compliance with the maximum-benefit commitments under the 2004 Basin Plan, produced for the Regional Board and publicly available. IEUA produces and publishes several reports related to groundwater management in Chino Basin including: Groundwater Recharge Reports, Recycled Water Reports, Facilities Management Reports, and Water Use Efficiency Reports.6 IEUA also submits to the California Department of Water Resources an updated regional Urban Water Management Plan report required by the State of California every five years. All the public water agencies – water districts or municipal utilities – are required by the State to prepare and submit Urban Water Management Plan reports every five years. These reports include current conditions plus estimates of future water demand within the agency’s service area and the identification of the water supply sources that will be used to meet that demand. Chino Basin Watermaster has drawn upon the information in these plans from the agencies within the basin when preparing updates to the Recharge Master Plans and the Optimum Basin Management Program. All public agencies also produce and publish annual financial reports. Many of the private water companies in the basin publish annual reports as well. The Watermaster publishes the agendas, meeting packets, and meeting minutes of all regular Pool Committee, Advisory Committee, and Watermaster Board meetings. In addition, Watermaster posts on its website audio recordings of the meetings.7 Since Watermaster began making audio recordings of the committee and board meetings publicly available in 2010, the meeting minutes have become shorter, simply summarizing and listing actions taken during the meetings. Interested  See https://www.ieua.org/read-our-reports/  See http://www.cbwm.org/meetings.htm

6 7

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individuals who were unable to attend any meeting can listen to it in full at any time, and considerable staff time is saved trying to characterize the discussions and comments made during the meetings. A new set of annual reports on groundwater management has been required by the State since 2015. In 2014, the California Legislature passed and Governor Jerry Brown signed into law the Sustainable Groundwater Management Act (SGMA). SGMA is an important policy change in California and will have substantial and far-reaching effects in more than 100 groundwater basins throughout the state (see Box 14.1). In Chino Basin, however, SGMA’s impact is minimal. The law exempted adjudicated basins such as Chino Basin, requiring them only to submit annual reports informing the California Department of Water Resources about basin conditions, water use, etc. In light of the extensive reporting that occurs in Chino Basin already, the annual reports submitted by Watermaster in compliance with SGMA have been relatively brief and largely consist of references and links to data and findings in the many other reports that Watermaster and other entities compile each year.8

Box 14.1: Chino Basin and the Sustainable Groundwater Management Act (SGMA) Chino Basin, like other groundwater basins in California where pumping rights have been adjudicated and limited, is exempt from the requirements of California’s Sustainable Groundwater Management Act of 2014, or SGMA. There are more than 90 other groundwater basins in the state where compliance with SGMA is required, some of which have had few or no institutional arrangements for managing groundwater resources previously. In those basins, some of which are critically overdrafted and facing severe negative consequences such as land subsidence, groundwater quality degradation, and depletion of interrelated surface water, groundwater management is being designed and implemented quickly in order to meet state deadlines and conform to legal and regulatory requirements. Implementing SGMA is a significant challenge, both to local water users and local governments and to state agencies charged with the law’s enforcement (Kiparsky et al., 2016; Moran & Wendell, 2015; Water Education Foundation, 2015). Within the basins that are covered by SGMA, existing local governments with either land or water resource responsibilities have been authorized to create Groundwater Sustainability Agencies (GSAs). Those GSAs, which may but do not have to cover an entire groundwater basin, then must develop, adopt, and submit for state review and approval Groundwater Sustainability (continued)  See http://www.cbwm.org/rep_sgma.htm

8

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Plans (GSPs). GSPs do have to cover an entire basin or be coordinated at the basin level. The GSPs are expected to employ 40-year planning horizons and incorporate measures that will bring a groundwater basin into sustainability in 20 years. Sustainable groundwater management is defined as the absence of undesirable effects such as excessive lowering or groundwater levels or groundwater in storage, land subsidence, seawater intrusion, groundwater quality deterioration, or depletion of interconnected surface water resources. More than 200 GSAs have been created in the 90-plus basins that are subject to SGMA. What can they learn from the experience of Chino Basin? 1. Tailor your governance structure to your circumstances. As explained in Chap. 6, Chino Basin’s arrangements for groundwater governance grew from its particular situation. It is an adjudicated basin, so the presence of a court-appointed watermaster exists in that context but would not otherwise. The division of the pumpers into three pools, two of them for overlying landowners, arose from the law of groundwater rights as understood in the late 1970s in the aftermath of the California Supreme Court’s decision in Los Angeles v. San Fernando. Last but not least, it is important to remember that a governance structure that started with one design can be changed, although doing so may be difficult (see Chap. 8). As far as governance structure is concerned, there is no right answer or best model, and what has functioned for Chino Basin would not necessarily serve the stakeholders of another groundwater basin well. 2. Build some flexibility around groundwater pumping allocations. In Chino Basin, as in some other adjudicated basins, pumpers with decreed appropriative rights under the Judgment have shares in the Operating Safe Yield, not fixed annual quantities. The Operating Safe Yield can increase or decrease depending on a variety of factors, and each appropriator’s allowed pumping is adjusted accordingly. This is a valuable approach when (a) a groundwater supply is already overdrawn and therefore pumping amounts may have to be revised from time to time until sustainability targets are approached and (b) those sustainability targets themselves are not clearly understood at first. Both of those conditions are likely to be present in the groundwater basins that are covered by SGMA. The flexibility of shares in an Operating Safe Yield that can be revisited and changed over time is better suited to situations where the characteristics of the basin are still being learned. Also valuable in Chino Basin have been the development of procedures by which the pumping allocation of overlying landowners can be transferred to appropriators when groundwater use by overlying owners is less than their assigned amount. In Chino Basin, a process for transferring groundwater use from the Agricultural Pool to the Appropriative Pool was part of the 1978 Judgment (and has been modified since), and a procedure was established more recently to allow unused groundwater allocation (continued)

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from the Non-Agricultural Pool to shift to the Appropriative Pool as well. What is important for basins implementing SGMA is not the specific details of how this is done in Chino Basin, but the fact that some provision for adjusting pumping allocations over time has been beneficial. 3. Invest in information as much as possible. Fifty years ago, Chino Basin and the Santa Ana River watershed where it is located had already been the objects of multiple studies and reports (see Chaps. 3, 4, 5, 6). People might well have thought they knew what they needed to know about the basin, the river, and how they worked. In some of the groundwater basins now subject to SGMA, people may believe they already know how the basin works and how it will respond to various management practices in the future. Chino Basin’s experience over the 40  years since the Judgment reveals that there was much more to be learned, and that the additional information was valuable for adjusting the management program. Moreover, the Chino Basin experience demonstrates how much can change in 40 years – land uses, water demands, treatment technologies, inflow and recharge, etc. As described earlier in this chapter and throughout the preceding ones, Chino Basin water managers and stakeholders have committed to a large-scale, fine-grained, intensive and ongoing investment in data, modeling, analysis, reporting, and then discussion and decision making based on them. Now that basins subject to SGMA face 40-year planning horizons of their own, an important lesson of the Chino Basin experience is that however clearly we might believe we see the future today, over the course of 40 years we will inevitably learn a lot and need to update and revise our forecasts. It is an expensive commitment to make, and the available financial and human resources will differ from basin to basin, which is why this lesson is not captioned “invest in as much information as possible,” but rather, “invest in information as much as possible.” 4 . Investments in information need to be matched by commitments to transparency. This is not as easy as it may sound, but the experience of Chino Basin over the last 40 years or so provides two important lessons. First, it is not necessary that every stakeholder or group have a vote or veto regarding every decision or action, but it is important and perhaps even necessary that everyone knows or has access to information about what others are doing. Everyone having access to meeting agendas, minutes or recordings, and everyone having access to or briefings on studies and projects and their outcomes, are practices that take time and effort and may sometimes seem unnecessary or excessive, but they contribute over time to two intangible yet invaluable assets – an informed population of stakeholders, and trust. Trust in this context does not mean agreement or obedience – participants can disagree with each other, disapprove of certain management actions, and complain about how they are adversely affected – but a basic confidence that one knows what is going on and can receive or find information (continued)

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that is the same as what others can receive or find. Second, in the inherently stressful and conflict-prone situation of sharing a resource that is already overused, the suspicion that others hold information or are privy to discussion from which one is excluded can be the spark that ignites a dispute. 5. Develop processes for dispute resolution. Disagreements will arise in the groundwater basins covered by SGMA. They are subject to the law precisely because they are heavily relied upon, already overdrawn, or both. Under those conditions, finding and then following – and then periodically modifying – the path to sustainable use will inevitably involve people having to do things they would rather not do. The history of groundwater in California, not only in Chino Basin, is a history of people going to court. Sometimes litigation may be necessary, but it does not have to be the first or only option. In Chino Basin, the road to the courthouse has been worn smooth from frequent use, but it is not the only road available. The parties and stakeholders in Chino Basin have also developed and employed facilitated negotiation with considerable success, during the development of the stipulated judgment in the 1970s, in reaching the Peace Agreement in 1999–2000, and in compiling the Peace II measures in 2007. The contest process, whereby parties can register their objection to another party’s action or a Watermaster decision that can be resolved either through negotiation or by presenting the issues to a hearing officer selected from a list of individuals trusted by all parties, is another alternative dispute resolution procedure available in Chino Basin. The details of the Chino Basin examples do not have to be transposed to other basins, but the broader lesson of making advance provision for alternatives to lawsuits is valid. 6 . Assign responsibility for managing underground water storage. Especially in overdrafted groundwater basins such as the ones covered by SGMA, the available underground water storage capacity is a resource that can rival the groundwater itself in economic value and in importance to a regime of sustainable management. In many California groundwater basins, including some adjudicated basins, no organization or agency has authority and responsibility for managing groundwater storage. In some locations, this oversight has led to subsequent conflict. In Chino Basin, the 1978 Judgment assigned the Chino Basin Watermaster responsibility for managing groundwater storage in the basin, although the scope of that responsibility and authority had to be clarified in the 2000 Peace Agreement in order to proceed with implementation of the Optimum Basin Management Program. Chino Basin today provides a useful example of authority and responsibility being assigned to an entity in the basin. The details of how this has been done in Chino Basin do not have to be replicated in other basins, but the broader lesson of making sure that authority and responsibility are assigned and assigned clearly is sound. (continued)

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7. Avoid “forever” solutions, and build timetables for revisiting, reaffirming, or revising. At first thought the pursuit of sustainability may seem like a search for some ideal outcome to be gained through the development of some once-and-for-all agreement and plan. Chino Basin’s experience and that of other managed basins is that developing and adopting time-limited plans and programs are preferable. If things are going well, plans and projects can always be reaffirmed, as was the case with the 2018 Recharge Master Plan Update and the annual reports thus far on the Prado Basin Habitat Sustainability Program. If conditions have changed or outcomes have been less successful than hoped, time-limited plans and projects provide opportunities for adjustment. Fortunately for the basins covered by SGMA, the statute and accompanying regulations already encourage this approach: GSPs are subject to a five-year update schedule, and GSAs must file annual reports, so those institutionalized requirements of SGMA may facilitate the adoption of general approach to sustainable groundwater management built around planning, acting, monitoring, and updating.

14.3  Stakeholder Engagement For ongoing projects and programs, Chino Basin Watermaster usually organizes a committee of interested and/or potentially affected stakeholders. The committee’s purposes are to provide input into project design, monitor project or program implementation, participate in meetings to review data or other monitoring results, and draft or vet the drafting of reports. Examples discussed in previous chapters include the Ground Level Monitoring Committee and Prado Basin Habitat Sustainability Committee. In the case of the Recharge Master Plan there have been three stakeholder committees. The Groundwater Recharge Coordinating Committee includes representatives from the four agencies that participated in the Chino Basin Facilities Improvement Project Phases 1 and 2 and continue to be responsible for recharge operations in the basin  – IEUA, Watermaster, Chino Basin Water Conservation District, and San Bernardino County Flood Control. An RMPU Steering Committee was formed to guide the process of developing the 2010 RMPU and 2013 RMPU, and another RMPU Steering Committee was formed for the 2018 RMPU. A Recharge Improvement Projects Committee (RIPCom) was created after the adoption of the 2013 RMPU – this committee is composed primarily of individuals with technical expertise in the participating agencies to monitor the construction of recharge facility improvements, selection and installation of equipment, and data collection and analysis. When Chino Basin Watermaster organizes a policy development process, it tends to use a structure that has become familiar to active participants in the basin. Background materials are prepared by Watermaster staff in collaboration with

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Wildermuth Environmental and/or legal counsel (depending on the issue). With the approval of the Pool Committees, Advisory Committee, and Watermaster Board, Watermaster staff will then schedule and organize a series of workshops (in the case of the 2020 OBMPU they were called listening sessions), to which presumed interested persons and organizations are invited and which are typically also open to the public. Each workshop is usually devoted to a particular aspect or dimension of the issue. Updates or newsletters are produced and distributed so interested persons who were unable to attend a particular workshop can see summaries of what took place. Workshop deliberations and ensuing findings or recommendations are gathered into a draft report, circulated for review and comment, and revised into a final report. That final report becomes the informational foundation for any motions or proposals that need to move forward for approval by the Pool Committees, Watermaster Advisory Committee, Watermaster Board, or the Court. If the findings and recommendations of the stakeholders who participated in the workshop cannot be reconciled into a consensus report, a facilitated process is conducted with the goal of resolving or reconciling disagreements. This process of stakeholder engagement in policy development has been employed by Chino Basin Watermaster several times.

14.4  Roles and Relationships Chino Basin’s polycentric governance structure is constituted under the provisions of the Chino Basin and Santa Ana River judgments and involves many entities. As described in Chaps. 3, 4, and 5, development of this governance structure has its origins in actions taken within Chino Basin for the conservation of water supplies and in the actions of Orange County water users, the Orange County Water District, and the adjudications over the Santa Ana River. As described in Chaps. 6, 7, 8, 9, 10, 11 and 12, subsequent additions to and changes of the governance structure occurred with the basin adjudication in the 1970s, the conflict in the 1990s over the Watermaster appointment, the transformation in the role and operations of the Inland Empire Utilities Agency, the emergence of SAWPA, the interventions by the Santa Ana Regional Water Quality Board. Direct water service to the public is provided by several municipalities, water districts, and water companies (see Fig. 14.1). Here is a list of organizations involved in Chino Basin management today. Chino Basin Watermaster Inland Empire Utilities Agency (formerly Chino Basin Municipal Water District) Three Valleys Municipal Water District (originally Pomona Valley Municipal Water District) Western Municipal Water District San Bernardino County Flood Control District Chino Basin Water Conservation District Cities that provide water and/or wastewater service – Chino, Chino Hills, Fontana, Norco, Ontario, Pomona, and Upland

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Fig. 14.1  Water service areas in Chino Basin. (Source: State of the Basin Report 2018)

Water districts that provide water and/or wastewater service – Cucamonga Valley Water District, Jurupa Community Services District, Monte Vista Water District, and West Valley Water District Water companies that provide water service and/or hold groundwater rights – San Antonio, Fontana, Fontana Union, Golden State, Santa Ana River, Marygold Mutual, Monte Vista Irrigation, and West End Consolidated. Joint-powers agencies – Chino Basin Desalter Authority, Chino Basin Water Bank, Santa Ana Watershed Project Authority, Water Facilities Authority Superior Court of the State of California for Orange County Superior Court of the State of California for San Bernardino County Santa Ana Regional Water Quality Control Board Santa Ana Watershed Project Authority Orange County Water District California Department of Fish and Wildlife California Department of Toxic Substances Control U.S. Army Corps of Engineers U.S. Bureau of Reclamation U.S. Environmental Protection Agency U.S. Fish and Wildlife Service

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As is true of virtually all water resource management, Chino Basin management is polycentric, involving numerous relationships among organizations that are formally independent but functionally interdependent. Governance and management responsibilities are generally not conducted by or within a single entity but through coordination among organizations that have specialized operations, limited jurisdictional authority, or a particular geographical reach that either covers part but not all of the basin or extends beyond it. Subsequent sections of this chapter focus on the Chino Basin Watermaster, its structure and decision-making processes, because it is the one basin-wide management body, but the Watermaster does not conduct many of the activities that are essential to the delivery of water and wastewater services, the operation of recharge facilities, the regulation of water quality, etc. For example, Chino Basin Watermaster is responsible for recharging the basin but the Watermaster does not own or operate the recharge facilities or produce the water that is used for recharge. The San Bernardino County Flood Control District owned and operated the Etiwanda and San Sevaine spreading grounds, and the Chino Basin Water Conservation District owned others including the Montclair Basin which was relied on extensively by the Watermaster during the 1980s and 1990s. For the first 23 years under the Judgment, Chino Basin Watermaster did not have formal operating agreements with these agencies. They communicated directly, with the Watermaster staff calling the County flood control staff, for example, and asking them to open a valve that diverts water into a recharge basin, or the flood control staff notifying the Watermaster staff when they were about to perform maintenance on a recharge basin. In 2001, in connection with the Recharge Master Plan and the Chino Basin Facilities Improvement Project and with the advent of millions of dollars of State funding, the relationship was formalized with a four-party agreement. Inland Empire Utilities Agency assumed most of the responsibility for the operation and maintenance of the recharge basins. Given its physical position in the middle of the Santa Ana River watershed and its political position in three counties, Chino Basin’s governance and management arrangements are also connected with several other agencies and organizations. The 1969 Santa Ana River Judgment links the Inland Empire Utilities Agency, Western Municipal Water District, and the San Bernardino Valley Municipal Water District in the upper watershed area with the Orange County Water District, the Santa Ana River Watermaster, and the Orange County Superior Court which has continuing jurisdiction over that judgment. Those water districts plus Eastern Municipal Water District (in Riverside County) and the Orange County Sanitation District are also linked through the joint-powers agency SAWPA, through which so many of the physical improvements in the watershed have been organized and financed. The Santa Ana Regional Water Quality Control Board has clearly played a crucial ongoing regulatory role in water quality protection and improvement, through the Basin Plan as well as the Cleanup and Abatement Orders issued in relation to the groundwater contamination plumes.

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As has been mentioned several times, IEUA, WMWD, and Three Valleys Municipal Water District (TVMWD)9 are member agencies of the Metropolitan Water District of Southern California, which supplies imported water for direct use and groundwater recharge and supports local projects financially. When Chino Basin Watermaster purchases imported MWD water for replenishment, that is done through IEUA and TVMWD. Within this polycentric structure, organizations not only have differing operational functions but different governing roles, i.e., as parties, stakeholders, and policymakers. The broadest category of participants in Chino Basin management may be characterized by the generic term “stakeholders” – individuals or organizations that are interested in or potentially affected by basin conditions or management actions. Not all stakeholders are parties to the Chino Basin Judgment and holders of pumping rights in the basin; indeed, many of them are not. The three municipal water districts, for example, are vital stakeholders in Chino Basin but do not pump groundwater.10 The same is true of Chino Basin Water Conservation District.11 The Regional Water Quality Control Board is another vital stakeholder, but not a party to the Judgment, and the same is the case with other state and federal agencies that are involved in various aspects of the basin. Some of these stakeholders are parties to various other agreements, however. The municipal water districts are parties to the Peace and Peace II agreements, for example, and are referred to as parties when the reference is to one of those agreements. As already mentioned, IEUA, Chino Basin Water Conservation District, and San Bernardino County Flood Control District are parties to the agreement governing the recharge facilities, along with Watermaster. Whether particular organizations or agencies are referred to as “parties” therefore depends on the context – the set of parties to the Judgment is not the same as the set of parties to the various agreements that coordinate or govern various management activities in Chino Basin. Identifying who qualify as “policymakers” in Chino Basin is therefore not simple or straightforward. The parties to the Judgment are represented on the Pool Committees, Watermaster Advisory Committee, and Watermaster Board and

9  As a reminder: there are three municipal water districts overlying Chino Basin because the basin is in three counties (see Fig. 10.2). In California municipal water districts cannot cross county lines. Three Valleys Municipal Water District includes the portion of Chino Basin that is within Los Angeles County; it overlies other groundwater basins in Los Angeles County as well. Western Municipal Water District overlies the portion of Chino Basin that is within Riverside County; it overlies other groundwater basins in Riverside County as well. Inland Empire Utilities Agency includes the portion of Chino Basin that is within San Bernardino County. That is also the majority of the area of Chino Basin. Inland Empire Utilities Agency does not overlie other groundwater basins in San Bernardino County. 10  IEUA is a party to the Judgment. Indeed, under its original name of Chino Basin Municipal Water District it was the plaintiff and the case is still captioned Chino Basin Municipal Water District v. City of Chino et al. 11  On the other hand, there are parties to the Judgment who do not pump groundwater even though they have assigned rights – Fontana Union Water Company and San Antonio Water Company, for example, assign or transfer their rights for use by other parties.

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therefore have roles in policymaking. So too do the municipal water districts, both through their representation on the Watermaster Board, their roles as parties to various agreements, and their ownership and decision-making control over several physical facilities that are involved in basin management activities. Certainly the Court and the Regional Board are Chino Basin policymakers as well. Governance in Chino Basin is complex, and the set of policymakers pertinent to any decision depends to an irreducible extent on its subject. “Managing the basin” under these conditions is really a matter of overseeing and sustaining processes through which differing combinations of participants deliberate and decide about issues which are distinguishable enough to differentiate even though they overlap to greater or lesser degree. In such a milieu, to lead is to be a communicator, liaison, conductor,12 and diplomat across a host of situations that call for more or less of each of those abilities. This is inherent in adaptive management – one of the principal rationales for the promotion of adaptive management was the recognition that everything is connected to something else, in which case neither management nor its governance can be tidy.

14.5  The “Watermaster Process” As mentioned at the beginning of this chapter, while there are many partners involved in the management of Chino Basin, the only institutions that correspond with the basin boundaries are the 1978 Chino Basin Judgment that encompassed the pumpers, the Court’s continuing jurisdiction over the Judgment,13 and the Chino Basin Watermaster (including the Board, Advisory Committee, and the three Pools). Decision making on basin-wide matters occurs through what is known as the Watermaster Process. If a new initiative or a change in existing practice is being raised as a possibility, stakeholders are usually assured that the new idea or plan or proposal will go through the Watermaster Process. The process starts with presentations to each of the three Pool Committees, separately, at one of their regular monthly meetings.14 The presentations are usually accompanied by a written Staff Report summarizing the issue, indicating any budgetary impact, and providing the staff’s recommendation if the staff has one. Each  I am grateful to Ken Manning for the orchestra conductor metaphor. The conductor does not play any of the instruments but tries to coordinate the activities of those who do. 13  This may be somewhat confusing since the Court is a San Bernardino County Superior Court and not all of the basin or the parties are within San Bernardino County. Nevertheless, to the extent that the parties are subject to the Judgment and the Court has continuing jurisdiction over the Judgment, its jurisdiction for purposes of this case corresponds to the extent of the basin including those parties who are not located within the county. The same is true of the 1969 Santa Ana River Judgment: the Superior Court of Orange County is assigned continuing jurisdiction of the Judgment and therefore its jurisdiction extends also to the parties that are not located in Orange County. 14  Although the Pool Committees meet separately, every Pool Committee’s meeting agenda and meeting minutes are distributed to the other Pool Committees. 12

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Pool Committee reviews, discusses, and, in some instances, offers one or more amendments. All three Pool Committees must independently approve/recommend a proposal, or at least vote to not oppose it, at which point the proposal can move forward to the Watermaster Advisory Committee. There, the same steps are followed – presentation and Staff Report, review, discussion, amendment, vote. The Advisory Committee must approve/recommend a proposal, or at least not oppose it, before it comes to the Watermaster Board. The procedure is repeated with the Board – presentation and Staff Report, review, discussion, amendment, vote.15 That may complete the decision-making process if it regards a matter entirely internal to the Watermaster operation. However, on most issues of any substantive import, Watermaster staff and counsel will also prepare and submit a motion to the Court. Sometimes, the Court is being apprised of the status or progress of a program or being provided with information, and in those cases the motion is usually just that the Court “receive and file” the report or whatever other documents are being submitted. In other cases, the motion requests the Court’s approval, in which case the motion typically will include a request for a hearing. Any other party or interested person can join the motion, oppose the motion, or present the Court with supplementary information if they choose. The Watermaster Process therefore means that by the time decisions are complete and proposals are approved, they have been deliberated on by a minimum of five and usually six bodies—the three Pool Committees, the Advisory Committee, the Watermaster Board, and the judge. Some matters make it through the process quickly: normally the three Pool Committees have their regular monthly meetings the second week of the month, the Advisory Committee has its regular monthly meeting the third week, and the Watermaster Board’s regular monthly meeting takes place during the fourth week. An entirely non-controversial annual report, for example, may clear the gauntlet in a month, be sent off to the Court with a receive-and-­ file motion, archived on the Watermaster website – done. Also, special meetings of the committees and board can be and have been called to expedite decisions if something is especially time sensitive. Otherwise, as seen in examples that were detailed in the preceding chapters, matters may pause at any or even several of the six stages and take months or longer to make it through, if they make it at all. The Watermaster Process is sometimes described as a consensus-oriented decision-­making process. It would also be accurately described as a veto-oriented decision-making process. It certainly is the opposite of the decision-making process one would design if the goal were streamlined action. At a June 18, 1996, hearing during the conflict over the Watermaster appointment, Judge Gunn and attorneys Fred Fudacz and Tom McPeters, respectively, made these observations.

 An exception to this process is the recommendation to the Court regarding appointment or reappointment of the Watermaster. That recommendation goes directly from the Advisory Committee to the Court.

15

14.5  The “Watermaster Process”

259

There has been process beyond your wildest dreams…. We have advisory meetings. We have standing committees of the Advisory Committee. We have three pool meetings. We have Watermaster meetings. It looks bizarre from the outside. The reason is, your Honor, is that’s what the parties feel comfortable with. That has allowed us to avoid coming in here with regularity. Honestly, the whole thing has worked remarkably well. Despite this cumbersome procedure, the parties have really striven to achieve consensus; and most everything has been done in that fashion. And the process, you can go through the records, it is unbelievable the amount of process we have. I have never seen anything with so many checks and balances. Every provision is a compromise that was hashed over by these people …. These people are well-informed as to their rights. They’re well-informed as to their issues; and they have a history of standing up for what they believe in. It’s worked remarkably well because of that. It’s complex and maybe the Wharton School people would not recommend it, but the Wharton School people would never have been able to get this judgment.

All three observations remain valid. It does look bizarre at least to some, it is what the parties are comfortable with, and a more streamlined decision-making process would probably be unacceptable to them. It is far from perfect, and it is clear from listening to meeting recordings and reading hearing transcripts that the parties themselves often find it frustrating, but no one appears to be willing to trade it for a decision-making process that would weaken their control. To say that there are a lot of meetings is an understatement. Another sign of the high value the parties place on control is the decisions they have made about their representation on the nine-member Watermaster Board. The bodies that are represented on the board have taken different approaches to selecting their representatives, but the common denominator of those approaches is the desire for control.16 As covered earlier, each of the three municipal water districts has a representative on the Watermaster Board, and they have usually reappointed their representatives for several years. From their perspective, keeping an experienced board member in place contributes to their influence on the board, given the rather steep learning curve that faces any new board member trying to understand the complexities of Chino Basin governance and management. The Non-Agricultural Pool has a seat on the Watermaster board and has followed the same strategy. The Agricultural Pool has two seats on the board and has followed a slightly different version of this strategy – the Agricultural Pool’s two seats have been filled over the years from within a small set of about four or five of the Pool members, so there has also been considerable continuity of Agricultural Pool representation on the board. The Appropriative Pool has three seats on the board and a rotation schedule (as mentioned in Chap. 9), which means that every year at least one Appropriative Pool representative on the board is new and no representative remains on the board for more than two years. This is widely regarded as weakening the Appropriative Pool members’ influence on the board relative to their long-serving counterparts from the

 The discussion in this paragraph is based on interviews with multiple board members in 2017 and 2018.

16

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municipal water districts and the other Pools, but in its own way the Appropriative Pool’s approach also reflects a desire for control: in their case, it is the desire of each member entity in the Appropriative Pool to be on the board at least periodically and their unwillingness to cede an Appropriative Pool seat to any one member of the Pool for very long. Even Appropriative Pool members who may realize that the frequency with which their board representatives change could diminish the Pool’s influence on the board are unwilling to switch to a different method that would lock in some Pool members for long periods while others are on the sideline.

14.6  Watermaster Reappointment Since 2000 As described in Chap. 9, Judge Gunn appointed the nine-member Watermaster Board to its initial 5-year term as Watermaster in 2000. On September 22, 2005, the Chino Basin Watermaster filed a motion requesting a hearing on question of reappointing the Watermaster, and the hearing was scheduled for February 9, 2006. On January 12, 2006, the Chino Basin Watermaster filed a motion requesting that Judge Gunn reappoint the Watermaster. Following the hearing on February 9th, Judge Gunn issued an order reappointing the Watermaster for a 5-year period. On January 21, 2011, Judge Reichert heard Chino Basin Watermaster’s presentation of the Advisory Committee’s recommendation to reappoint Watermaster for another 5-year period. The reappointment order was issued January 26, 2011 and the term extended to 2016. As described in Chap. 13, during the fight over the Safe Yield Reset Agreement at the end of 2015, the Advisory Committee recommended reappointment of the Watermaster board but only for three years. Judge Reichert approved the three-year appointment, to run from February 2016 to February 2019. In November 2018, as the conflict over the Safe Yield Reset was receding, the Advisory Committee recommended to Judge Reichert that the Watermaster Board be reappointed for the full five-year term. No objections were filed. This reappointment has been described by some stakeholders as an expression of the parties’ confidence in the current General Manager, Peter Kavounas, and the Watermaster staff. On December 28, 2018, Judge Reichert granted the motion and the current appointment extends to February 2023.

14.7  The Changing Pools Although the basic structure of the decision-making process for Chino Basin has remained the same since 1978, the membership and composition of the three Pools have changed in ways that reflect the transformation of land uses, economic activity, and water use. In 1978, the Agricultural Pool accounted for the majority (55%) of pumping in Chino Basin; today that proportion is about 15 percent and continues to decline gradually. The Appropriative Pool’s pumping in 1978 was 39 percent of the

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total, but now is approximately 70 percent. The Non-Agricultural Pool’s 10,000 acre-feet of pumping in 1978 represented 6 percent of Chino Basin withdrawals; today its 2700 acre-feet is closer to 2 percent.17 The numbers of members and active wells in the Agricultural Pool have dropped as many agricultural producers have either moved away or closed their operations and sold their land for development. The numbers of members in the Non-Agricultural and Appropriative Pools have remained more nearly stable, although annual production by the Non-Agricultural Pool has declined substantially. Within the Appropriative Pool, there was some reduction of membership during the 1980s and 1990s, as some of the private or mutual water companies sold their rights to larger operators such as the water districts and cities. Since then, other entities have joined the Pool,18 so the overall number of Appropriative Pool members is about the same as it was in 1978. The distribution of Operating Safe Yield shares within the Appropriative Pool also has not changed much. The five largest Pool members in 1978 held a combined 67.12 percent of the share of Operating Safe Yield. In 2019, the corresponding percentage was 69.01 percent, and the five largest Pool members are the same as 42 years ago. Most of the changes in Appropriative Pool members’ allowed pumping – i.e., pumping that does not incur a replenishment assessment – have come from land-use conversions and transfers. The changes in size and composition of the Agricultural and Non-Agricultural Pools have led to some changes in their internal decision-making structures and selection of representatives in the Watermaster structure. In 2010, for example, the Non-Agricultural Pool Committee filed a motion to amend the Judgment provision governing its decision-making procedure. The Pool decided to supplement its “volume vote” (weighted voting) method with a requirement that a minimum number of members had to agree. In addition to being supported by a majority of the volume vote, any committee decision or action also has to be supported by at least one-third of the members. Changes over time in the pattern of groundwater pumping by the members of the Pool had raised the prospect that, in the foreseeable future, it might be possible for a single Pool member to end up with a majority of votes under the Pool’s weighted voting procedure.19 The Pool Committee decided to retain the volume vote but prevent one or two members from being able to make decisions for the whole Pool. In 2013 the Agricultural Pool Committee filed a motion to revise a provision of the 1998 Court ruling appointing the nine-member Watermaster Board. That ruling barred individuals from serving simultaneously on the Watermaster Board and either the Watermaster Advisory Committee or a Pool Committee. As described in Chap. 8, the Special Referee and the Court had included this proviso due to the  The pumping by the three Pools does not add up to 100 percent. Pumping for the desalters makes up the remainder. 18  This is done by a legal process called intervention whereby a person or organization that was not previously a party to the Judgment petitions to become a party. 19  The Non-Agricultural Pool Committee pointed to the procedure used in the Appropriative Pool which also combines weighted voting with a minimum threshold of member agreement. 17

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concern at the time about the Board being sufficiently independent of the Advisory and Pool Committees. In the ensuing 15 years, the concern over the Watermaster Board’s independence had likely faded for many and been forgotten by some. Over that same period, the number of active members of the Agricultural Pool had fallen dramatically. By the 2010s it was becoming clear that for the Agricultural Pool, it was increasingly difficult to fill their Pool Committee seats, their seats on the Watermaster Advisory Committee, and their two seats on the Watermaster Board with different individuals. There were no objections to the Agricultural Pool’s motion to let members serve simultaneously on the Board and either the Advisory Committee or Pool Committee, and Judge Reichert granted the motion. Another interesting change is that the lines between the Pools have become somewhat porous.20 Some Appropriative Pool members, City of Ontario and Monte Vista Water District, have become members of the Non-Agricultural Pool. And vice versa: Non-Agricultural Pool members CalMat, Inc., and NCL Co., Inc., have joined the Appropriative Pool.21 In addition, some members of the Appropriative Pool supply water to members of the Agricultural or Non-Agricultural Pool located within their service areas or to which they have extended service lines. In circumstances where an Appropriative Pool member pumps groundwater that it serves to a Non-Agricultural Pool member, that pumped groundwater can be counted as Non-­ Agricultural Pool pumping rather than counting against the appropriator’s share of the Operating Safe Yield. The Peace II measures also allowed Appropriative Pool members to acquire unpumped Non-Agricultural Pool water by transfer. These kinds of changes have taken place for reasons that made sense at the time and generally still do. They have a couple of implications, though – one fairly narrow, the other broader. The Pool Committees occasionally discuss matters in “closed session” during their meetings – that is, during a regular monthly meeting that is open to the public and recorded for the website, a committee may go into closed session during which its deliberations are not public or recorded and then return to the regular meeting. This might be used, for instance, when a committee wishes to discuss a personnel matter or pending litigation. As is clear from the preceding chapters, sometimes what the Pool Committees are discussing in closed session is a disagreement or conflict they are having with one of the other Pool Committees. When committee membership overlaps, i.e., when the same party is represented on both Pool Committees, the confidentiality of discussions that take place during closed session may come into doubt. A broader question can be raised about the continued applicability of the composition of the three Pools established in 1978. The division of the pumpers into two groups of overlying landowners – commercial and industrial interests in one and

 They were never impenetrable: San Bernardino County, for example, has been a member of all three Pools. 21  Each of these changes was executed by means of an intervention. The intervention process can be used for a non-party to become a party to the Judgment, as noted above, and for a party that is a member of one Pool to request membership in another Pool. 20

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agricultural users in the other22  – plus a group of appropriators was clearly and understandably driven by California water law’s distinction between the groundwater rights of landowners and the groundwater rights of everyone else. For good or ill, California water law still recognizes this distinction, so that basis for the establishment of the pools remains in place. However, this legal separation among the three Pools does not mean that they necessarily represent three communities of shared interest – or, if they once were three communities of shared interest, it is not obvious that they still are. As most clearly illustrated in the Peace II negotiations described in Chap. 11 and the 2010 Safe Yield Reset process described in Chap. 14, just because members of the Appropriative Pool share the legal status of being appropriators does not mean they agree with one another. To this one can add the facts that (a) some appropriators are now in both the Appropriative and Non-­ Agricultural Pools, (b) some businesses are now in both the Non-Agricultural and Appropriative Pools, c) some parties with overlying rights actually receive water service from appropriators, and d) all three Pools have changed substantially over time. The separation of the pumpers into this particular three-group configuration appears to persist simply because of California’s continued insistence on the division in its law of groundwater rights. Whether and how it still benefits Chino Basin governance and management is less clear. Finally, it seems that everything in Chino Basin since the 1990s is connected with the desalters somehow and the overlap of membership between the Appropriative Pool and Non-Agricultural Pool fits this pattern. The 2018 amendments to the Judgment regarding Non-Agricultural Pool decision making described above included a provision that Appropriative Pool members can use water stored in or transferred from Non-Agricultural Pool accounts to offset the Appropriative Pool member’s desalter replenishment obligation. Among other things, this amendment allows Appropriative Pool members who have acquired membership in the Non-­ Agricultural Pool – thus far, City of Ontario and Monte Vista Water District – to accumulate pumping rights in the Non-Agricultural Pool and use whatever portion they do not produce to lower their respective desalter replenishment obligation. Coincidentally or not, the City of Ontario, originally a member only of the Appropriative Pool, now holds the largest share of pumping rights in the Non-­ Agricultural Pool – 2966 acre-feet, or approximately 40 percent of Non-Agricultural Pool pumping rights. The amendment to the Non-Agricultural Pool rules also provides Non-Agricultural Pool members an additional means to monetize their unpumped allocations by transferring them to Appropriative Pool members for desalter replenishment offsets.23

 As already noted, the State of California is in the Overlying (Agricultural) Pool even though its groundwater use is not primarily for agriculture. The State’s largest properties in Chino Basin are the men’s and women’s prisons. 23  Putting together the annual Assessment Packages is a very complicated undertaking, to say the least. 22

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14.8  Attorneys and Engineers Each Pool Committee retains its own legal counsel. This has not always been the case but has been true for many years now. Each Pool Committee also has the right to contract for consulting services, as the Agricultural Pool and Appropriative Pool Committees most recently did in relation to the 2020 Safe Yield Reset and 2020 Storage Management Plan development processes. Two of the most important and influential contributors to Chino Basin governance and management have been the legal counsel and engineering consultant employed by the Chino Basin Watermaster. Since 2000 the Watermaster legal counsel has been the firm of Brownstein Hyatt Farber Schreck, with its attorney Scott Slater as lead counsel assisted until 2011 by attorney Michael Fife and since 2012 by attorney Bradley Herrema. The Watermaster engineering consultant, going back to the early 1990s, is Wildermuth Environmental Inc., with principal Mark Wildermuth assisted since 1996 by Andrew Malone. As should be evident from Chaps. 9, 10, 11, 12, 13 and 14, it would be difficult to overstate the influence that Scott Slater and Mark Wildermuth have had on Chino Basin. Slater brought together the Peace Agreement and Peace II, has represented the Watermaster before the Court on countless occasions, and frequently provides advice and guidance to the Watermaster Board and staff on the Judgment and the other agreements that have been entered into over the years. Wildermuth came to prominence in the basin during the Chino Basin Water Resources Management Study in the early 1990s, guided its transformation into the Optimum Basin Management Program, is generally credited with the inception of the concepts of Hydraulic Control and Basin Re-Operation on which the 2004 Basin Plan and the Peace II measures and their implementation were based, and led the technical work for the 2010 RMPU, 2013 RMPU, 2018 RMPU, 2010 Safe Yield Reset, 2020 Safe Yield Reset, 2020 Storage Management Plan, and 2020 OBMPU. It is no hyperbole to say that both Slater and Wildermuth have invested major portions of their careers in making Chino Basin management work.24 In the often contentious world of Chino Basin management, among the few items on which one finds near-unanimity are the high respect and regard for Slater and Wildermuth and the view that both have been essential to the success of the management program there.

 Their colleagues Brad Herrema and Andy Malone have shouldered increasing proportions of the Chino Basin portfolio in recent years and are also greatly appreciated by the board members and other stakeholders interviewed for this study.

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References

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References Kiparsky, M., Owen, D., Green Nylen, N., Christian-Smith, J., Cosens, B., Doremus, H., Fisher, A., & Milman, A. (2016). Designing effective groundwater sustainability agencies: Criteria for evaluation of local governance options. Berkeley: Center for Law, Energy and Environment, University of California Berkeley School of Law. Moran, T., & Wendell, D. (2015). The sustainable groundwater management act of 2014: Challenges and opportunities for implementation. Stanford: Stanford University Water in the West. Water Education Foundation. (2015). The sustainable groundwater management act: A handbook to understanding and implementing the law. Sacramento: Water Education Foundation.

Chapter 15

Looking Ahead and Lessons Learned: The Prospect of Continual Adaptation

Abstract  This closing chapter returns to topics raised in the introductory chapter, about what adaptive management means – not only in concept but in practice. Chino Basin faces a future of continual adaptation, as everything from water use efficiency to treatment technologies to climate change and more continue to develop in ways that require adaptive response. The experiences of Chino Basin are reviewed with this aim in mind. Managing adaptively also means placing a premium on learning, which is an aspect of resource management that has been exemplified in Chino Basin. The Chino Basin case shows that much can be gained through adaptive management, but it requires a sustained commitment which is not easy to maintain. This chapter includes an assessment of the ways in which groundwater management in Chino Basin has been a success story despite the difficult passages and multiple conflicts through which the basin and its users have journeyed along the way. Keywords  California · Chino Basin · Groundwater · Adaptive management · Climate change

Currently the Chino Basin Watermaster, local water agencies, and groundwater users are once again engaged in complex determinations of how to effectively protect, manage, and maximize the benefits of the basin’s water supply and storage capacity while dealing with another reduction in Basin Safe Yield, continuing water quality issues, and ongoing uncertainty about imported water availability. What can be achieved and how to achieve it are and will remain pressing topics in the near-­ term future.

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1_15

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15.1  Uncertainty as a Certainty The longer term, of course, involves what climate change portends for the region and its water resources. Climate change effects and forecasts are being factored into basin planning,1 and further adaptations to management practices will inevitably result. Current models do not predict a dramatic change in overall precipitation volumes in the Santa Ana River watershed or in California, but the timing and location of precipitation are likely to shift. Observations of the past 50–100 years and current models do, however, suggest that average temperatures across the watershed have been rising gradually and will continue to rise.2 Temperature rise affects evaporation and transpiration rates with implications not only for surface water bodies but shallow groundwater as well (Condon, Atchley, & Maxwell, 2020). In Chino Basin continued monitoring will be needed of stream flows, evaporation losses at recharge basins, shallow groundwater levels in Prado Basin, water use, and more, and management changes may have to follow. Chino Basin faces a future of continual adaptation. Climate change is only part of it. Groundwater contamination is not only an ongoing but a seemingly ever growing issue. As mentioned in Chap. 12, the presence of 1,2,3-trichloropropane (TCP) has been detected in wells in Chino Basin and elsewhere. Since 2018, awareness has risen worldwide of the prevalence of a family of chemicals in groundwater known as perfluoroalkyl and polyfluoroalkyl substances or PFAS.  These chemicals are believed to have adverse human health effects although the prevalence and severity of those effects are still being researched. Among the most troubling signs is that they bio-accumulate, i.e., our bodies do not appear to break them down or get rid of them naturally. They also appear to be unaffected by commonly used water treatment techniques. PFAS have been widely used in manufacturing a huge range of products in the United States since the 1940s, so they have had more than enough time to infiltrate into groundwater supplies and are now being found there. PFAS are therefore a new challenge to water quality regulators, water suppliers, treatment plant operators, and others who will have to act to try to limit and reduce the public’s exposure. In the meantime, the discovery of contaminants such as TCP and PFAS holds the potential to shut down wells and interrupt public water supplies. These were among the topics discussed at a Water Quality Colloquium hosted by Chino Basin Watermaster in May 2019, where attendees had the opportunity to learn more and ask questions about PFAS, TCP, and other so-called “emerging 1  Inland Empire Utilities Agency commissioned a study by the RAND Corporation on prospective climate change impacts in its service area, which is most of Chino Basin. See Groves, Davis, Wilkinson, and Lempert 2008, Groves, Knopman, Lempert, Berry, and Wainfan 2008 and Groves, Lempert, Knopman, and Berry 2008. 2  See, for example, United States Bureau of Reclamation (2013) Climate Change Analysis for the Santa Ana River Watershed. Technical Memorandum No. 86-68210-2013-02. Denver, CO: U.S.  Bureau of Reclamation Technical Services Center. Also, Wildermuth Environmental Inc., Annual Report of the Prado Basin Habitat Sustainability Committee, Water Year 2015/16.

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contaminants,” their implications, and how state and federal regulatory agencies are addressing them for now. The availability and dependability of other water sources in California remain subject to change. States and the federal government continue to monitor, negotiate, and renegotiate drought management planning and response for the Colorado River, which is an important water supply source for southern California. Imports to southern California from the State Water Project are uncertain as well, as state policymakers continue to try to discover the next steps for addressing the knot of ecological and economic issues that is tied up in the Sacramento-San Joaquin River Delta and San Francisco Bay. Chino Basin’s progress toward greater self-sufficiency proved beneficial locally as the basin survived the most recent serious drought, but it is also good for the whole state. The management arrangements put in place in the 1960s and 1970s in southern California to halt the overdrafting of groundwater basins relied heavily on imported water as a steady source of water replenishment. That practice made sense at the time but has become a questionable matter since. These days, the less that southern California groundwater basins such as Chino Basin need from the State Water Project and the Colorado River, the better. This is easily and widely recognized throughout the region, although how to accomplish it is less clear or certain. Whatever state and federal policymakers do next will constitute another set of changes to which Chino Basin management will have to adapt. A key adaptation success of the last 20 years has been the inclusion of recycled water into the water supply portfolio of communities throughout southern California including Chino Basin. As economic growth and technological advancement have allowed the adoption of more refined and robust treatment techniques, recycled water has become an integral component of water planning and management in everything from basin recharge to irrigation and even habitat protection. Here too, however, change is afoot. The success of water conservation efforts and water-use efficiency improvements during the last 20 years, and especially the last ten, has diminished per-capita and per-household water use. This reduction in the growth of water demand – in some years and locations, actual reductions in water demand – has contributed substantially to the success of many water agencies in weathering the droughts and interruptions of imported water supplies for basin replenishment. It has also translated, however, into lower amounts of wastewater produced and therefore recycled water available. Recycled water does and will continue to play a crucial role in water management in Chino Basin and elsewhere, but the once supposed certainty of its continued growth has been replaced with uncertainty. In addition, the availability and cost of recycled water may be affected by the issue of emerging contaminants discussed above.3

3  The 2020 Safe Yield Reset motion submitted by the Chino Basin Watermaster and approved by Judge Reichert incorporates this possibility. It includes a provision that the Basin Safe Yield (now set at 131,000 acre-feet per year through 2030) might be reconsidered if additional water conservation requirements are ordered by the State of California and result in water use reductions of more

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Uncertainty does not always appear as gradual processes of change; sometimes there is an outright surprise. In October 2017, Quagga mussels were found in the East Branch Aqueduct of the State Water Project – the branch that carries northern California water to Chino Basin and beyond. These tiny creatures multiply at breathtaking rates as they cling to surfaces to intercept passing water flows for food, which means that they can quickly cover and clog screened pipe intakes. Although by comparison with climate change, quagga mussels are at worst a nuisance, they nevertheless can have a water management impact. Left alone, they could begin to throttle the flow of water through the pipelines that serve Chino Basin. Removing them will likely mean having to interrupt flows as individual pipelines are taken out of service. Either way, the recharge program in Chino Basin for recharging the groundwater with a blend of imported, recycled, and storm water would be affected.4 “It’s always something” could be the motto of adaptive management. Adaptive groundwater management in Chino Basin has already dealt with the transformation of the landscape, population, economy, water supplies and water uses. The changes that lie ahead will not look the same – the causes, dynamics, and consequences will be different. The one sure thing seems to be that Chino Basin management will need to remain adaptive.

15.2  T  he Realities of Adaptive Management and Chino Basin’s Lessons Even though the conscious adoption of adaptive groundwater management in Chino Basin is relatively recent, collective action to deal with change by creating institutional arrangements has a much longer history. The Chino Basin Protective Association’s self-financing and self-governing processes for gaining members, eliciting information, and taking collective action represented important institutional arrangements that later allowed water users to participate in the development of a Chino Basin water-spreading program, and to contribute to the formation of the San Bernardino County Flood Control District and the Chino Basin Water Conservation District to operate and finance that program. The association also helped to organize the Chino Basin Municipal Water District to obtain access to supplemental water for most of the basin. The CBMWD was in turn instrumental in settling the litigation with the Orange County Water District over the Santa Ana River. In the 1960s and 1970s, a new Chino Basin Water Association contributed to the formulation of the complex set of rules known as the Chino Basin judgment. The Negotiating Committee reviewed examples of institutional arrangements at work in

than 2.5%. The impact on basin recharge of a use reduction greater than 2.5% might be sufficient to warrant another alteration in the amount of allowed pumping that does not require replenishment. 4  Chino Basin Watermaster and Wildermuth Environmental Inc., State of the Basin Report 2016.

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other basins, compared those with the physical and political circumstances of Chino Basin, and evaluated them in light of the changes wrought by the Los Angeles v. San Fernando decision in 1975. This committee suggested the unusual pool arrangements, with different types of water users and water rights integrated into a watermaster structure, with a flexible Operating Safe Yield determination, some provision for the transfer of pumping rights from overlying landowner to appropriators, rights to store water in the basin, and rights to transfer stored water. Forty years ago, the set of rules for managing Chino Basin was characterized as “the most complex and sophisticated adjudication yet devised” (Lipson, 1978: 83). It has grown much more complex and sophisticated since then. Basin governance and management in the Chino Basin and in the other basins of southern California continue to evolve. The evolutionary process is not smooth, and the management programs are not self-executing. Numerous possibilities remain for making mistakes. Basin governance and management continue to demand skillful artisanship and careful attention to basin conditions and circumstances. In addition to becoming more complicated, Chino Basin management has become adaptive. Management plans are provisional, time-limited, and updated. Management actions and their effects are monitored, reviewed, analyzed, and modified. These processes take place in multiple forums with overlapping sets of stakeholders with diverse interests and concerns. Groundwater conditions, along with conditions of related resources such as surface water flows and riparian habitat, are studied, discussed, and reported on regularly. Adaptation is now deeply embedded and firmly ensconced in Chino Basin. It is built into the way decisions are made, plans are developed, and actions are taken. The management approach is analyze, plan, decide, act, monitor, study, learn, adjust, repeat. Adaptation has also become institutionalized. Chino Basin does not have a Recharge Master Plan; it has the latest Recharge Master Plan Update. Likewise: the latest Prado Basin Habitat annual report, the latest Ground Level Monitoring Committee report, the Revised Judgment, the amended Peace Agreement, the reset Safe Yield, and the Optimum Basin Management Program Update. Several of these are accompanied by implementation plans, and then the implementation plans are revised as well. This adaptive management approach, with its embrace of change and uncertainty, seems to have influenced the thinking of the parties themselves. The recent criticisms of the 2020 Safe Yield recalculation questioned whether the analysis underlying the safe yield projection adequately incorporated uncertainty. This is somewhat striking. A stereotypical expectation might have been that groundwater producers would be eager to have an unambiguous safe yield estimate and would become impatient with various qualifications and reservations about the uncertainties associated with the estimate. The opposite occurred. In Chino Basin in 2020,

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some parties instead questioned whether the safe yield estimate was too unambiguous and whether it had been made with adequate allowance for uncertainty.5 One of the most important lessons that the participants in Chino Basin governance and management have learned, and that the Chino Basin experience can teach us, is that even the surest bets on the future can fail. Not too long ago in Chino Basin, everyone knew that continued development of the basin and the rest of the upper area in the Santa Ana River watershed would choke off the flow of water to Orange County. Not too long ago, everyone knew that that the conversion of land to urban uses accompanied by population growth would result in ever-escalating amounts of water demand (see Fig. 15.1). Not too long ago, everyone knew that the quantity of recycled water produced and used would keep growing as far into the future as anyone could see. Not too long ago, everyone knew that the green oasis of the Prado Basin would wither and shrink. To whatever extent groundwater management in Chino Basin has been successful, it has not been because visionary leaders accurately predicted the future.6 Many predictions about Chino Basin’s future did not come to pass.

Fig. 15.1  Past pumping projections and recent actual pumping. (Source: Chino Basin Watermaster)

5  As noted in Chap. 13, these objections were briefed by the parties and present at a hearing before the Judge. Judge Reichert concluded that the Watermaster’s 2020 Safe Yield recalculation had followed sound methodology and had adequately considered uncertainty. 6  The work in the 1970s by Donald Stark and the other negotiators who crafted the Chino Basin Judgment to allow for land-use conversion and storage rights can credibly be labeled visionary. Susan Trager’s writings and her argument to Judge Turner in 1989 that in Chino Basin groundwater quality concerns would rise to equal prominence with water supply seem prophetic, as well. There is no claim here that accurate predictions have never occurred; only that their number has been matched by inaccurate ones.

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And yet, Chino Basin and its residents have survived and even prospered through a transformation of the landscape, massive economic and population changes, the loss of certainty about imported water supplies, the discovery of contamination at multiple sites, and some of the most severe droughts of the century. The groundwater supply is still there, groundwater levels have fluctuated within a reasonable range, the areas within the basin of the worst water level declines have stabilized, land subsidence appears to have been arrested,7 and the underground water storage capacity has been used to the practical benefit of the parties even if not to the extent dreamed in the 1970s and 1980s. The contamination plumes are being intercepted and contaminated groundwater is being extracted, treated, and turned into usable supply. The largest riparian forest in southern California has expanded in size and the measurable indicators of its health are positive. This combination of outcomes did not result from Chino Basin decision makers getting everything right, or from the prescient design of a management plan and its consistent execution. The success of Chino Basin groundwater management appears to be due instead to a notable investment in and commitment to learning. Chino Basin groundwater producers, water agency managers, water and wastewater service providers, Pool Committee members, Advisory Committee members, Watermaster Board members, as well as their staff and advisors have spent decades learning the basin – how it functions, how it responds, what it can do and what it tends not to do. That learning has been accompanied by ongoing adjustments, modifications, amendments, resets, and updates. At one time, we might have judged the success of groundwater management in Chino Basin by identifying the goal or goals, selecting the metrics, and comparing the measures of those metrics to the goal or goals. To a certain extent, adaptive management changes the way we evaluate success, and even what we value as success. It does not mean doing away with goals or with metrics – if anything, in Chino Basin it seems that everything is being measured all the time. Adaptive management redirects our attention toward different kinds of goals, not outcomes as much as resilience (Pahl-Wostl, 2015). Instead of “did we get there,” the evaluative question becomes, “how are we doing?” Recognizing and coping with change takes precedence over unwavering perseverance in spite of it. One of the best known books about adaptive management bears the title, Compass and Gyroscope (Lee, 1992). The paired metaphors convey the message: in natural resource management, setting a direction and trying to advance toward it in a straight line is not nearly as suitable as maintaining some balance while everything around you tilts and turns.

7  Well-known California water law and management expert Eric Garner highlighted this example of adaptive groundwater management success: “In the Chino Basin of Southern California, land subsidence due to basin compaction began to damage existing infrastructure. The watermaster established by the Chino Basin physical solution recognized the problem, conducted a technical investigation, and developed an adaptive management programme to minimize the risk of future subsidence…. The watermaster’s continuous collection of technical data ensures that stakeholders will be will informed and more able to adapt to changes circumstances when they do arise.” (Garner, 2016: 890)

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Adaptive groundwater management in Chino Basin is a success story. Multiple transformations and transitions – some foreseen, others not – have taken place there whether you measure over the last century or the last half-century or the last 20 years. Not only have groundwater conditions not collapsed amid this turbulence, they have generally improved and especially so since 2000. Through all the changes, the immensely valuable groundwater resource of Chino Basin has been brought closer to sustainability thanks to many shifts and adjustments. As stated in Chap. 1, however, Chino Basin is both a success story and a cautionary tale. Having read this far about Chino Basin, no reader would be inclined to say, “They succeeded – let’s just do what they did.” The Chino Basin case shows that much can be gained through a sustained commitment to adaptive management, but sustaining that commitment is difficult and costly. Adaptive groundwater management has been at best difficult, occasionally perilous, and at times vituperative. It has been contentious, protracted, and expensive. The recurring bouts of litigation are only the most visible manifestation of that. Change may have become built into the Chino Basin management approach, but almost every change has been a fight, to the extent that one might nearly say that fighting has become built into Chino Basin management as well. Some of the contestation that occurs in Chino Basin or in other resource management situations is constructive. Those who rely on the basin are differently situated and differently affected by basin conditions and management actions. All participants value the basin highly, but what they value most about it can and does differ. Being represented in deliberative processes and having the chance to participate are important elements in adaptive management (Akamani, 2016; Ross & Martinez-­ Santos, 2010). Proponents of adaptive management have sometimes overlooked or understated “the political and value-laden character of water management and knowledge,” embracing instead “a rather rationalistic and technocratic idea that management frameworks, tools, and methods are sufficient…. However, it is questionable whether this depoliticized and managerial view of water is realistic” (van Buuren, 2013: 171–172). Adaptive or not, groundwater management is inescapably political. It necessarily involves making decisions and taking actions in a group whose members do not all have matching priorities, preferences, and worries. Disagreement is part of politics and politics is part of resource management. As complicated as it is, Chino Basin’s polycentric governance structure provides multiple opportunities for questioning proposals, raising concerns and complaints, and considering management actions and their effectives from many perspectives. As discussed in the preceding chapter, the Watermaster decision-making processes involve high thresholds for agreement, requiring the three Pool Committees and the Advisory Committee to vet and approve measures before they make it to the Watermaster Board. Serious disagreements can slow or halt actions from moving forward until those disagreements are resolved. Under those circumstances, delay that provides room for constructive dispute resolution can prove beneficial in the long run. Excessive delay and obstructionism are not. As in so many things in life, the challenge lies in knowing the difference.

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Conflict is an essential element of governance. Differences are inevitable, and an orderly approach to resolving those differences is essential; over the time periods needed to establish conservation practices, conflict and turbulence must be expected and should be welcomed. But conflict needs to be bounded  – disputes should be conducted within the boundaries of a social process that the disputing parties perceived as legitimate. (Lee, 1999)

Some of the fights in Chino Basin have been exceptionally productive despite the toll they have taken. The conflict that led to the 1969 Santa Ana River Judgment ultimately allowed the upper-area and lower-area water agencies to move ahead with their own plans and projects, protected the lower area’s entitlement to a minimum inflow of usable water, and give rise to SAWPA through which the agencies in the watershed have collaborated on multiple major projects to protect and improve water quality and habitat in the region while accommodating the economic development and population growth that could otherwise have resulted in devastating effects. The OBMP and Peace Agreement that institutionalized adaptive groundwater management in Chino Basin did not result from calm reflection in some imaginary consensus circle; they were forged in the midst of a protracted and sometimes bitter fight over control of basin governance, and their implementation was required by court orders with the threat of local governance being taken away. Some of the most positive transformations in water resource management in Chino Basin have emerged from processes that were painful and scarring. Other fights that have taken place in Chino Basin have appeared to be more mundane. In 2018 and 2019, as the resolution of the appeal over the terms of the safe-­ yield reset and the allocation of desalter replenishment was being negotiated among members of the Appropriative Pool, the Agricultural Pool repeatedly (and ultimately unsuccessfully) requested to intervene in the proceedings. A few months after the appeal had been dismissed and the revisions to the replenishment obligation formula finalized, the Agricultural Pool developed a set of proposed amendments to the Agricultural Pool’s internal decision making processes (i.e., its “pooling plan” in the language of the Judgment), affecting the length of terms of Pool Committee representatives, the voting structure within the Pool Committee, and assessments on members for Pool Committee costs.8 Ordinarily, the Pool Committees stay out of each other’s business when it comes to these sorts of things. In this case, however, the Appropriative Pool initially “took no position” on the Agricultural Pool’s changes but reserved the right to comment on them. Later, when the pooling plan amendments were submitted to the Court, Appropriative Pool members filed objections.9 The Appropriative Pool’s filing referred to the Agricultural Pool’s objections to the appeal parties’ settlement and amendments earlier in the year, lending to the inference that some manner of payback was involved. The Agricultural Pool and Appropriative Pool have subsequently squared off over the 2020 Safe Yield Reset 8  Most of the recommended amendments updated the Agricultural Pool Committee rules to reflect practices that had evolved informally as the number of actively engaged individuals has declined. 9  The Appropriative Pool’s reply was submitted on December 2, 2019. Appropriative Pool members City of Ontario and Monte Vista Water District filed their oppositions to the Agricultural Pool’s motion that day, and City of Chino entered its opposition the following day.

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and the 2020 Storage Management Plan. At times during their respective Pool Committee meetings, prior to a vote on a motion, a member of one of these two Pool Committees will ask the Watermaster staff what the other Pool Committee did or was planning to do. Although each side has skilled advocates who present their respective arguments with high-minded rhetoric, it is hard to escape the inference that some of what goes on is retaliation. Chino Basin’s reputation for fighting remains, in Scott Slater’s understatement from May 2000, “legendary” among California water professional and aficionados. That reputation unfortunately sometimes obscures what has been accomplished there. As noted in Chap. 9, participants in Chino Basin governance and management somehow accomplish a lot even when they are fighting, but the fighting often draws more attention. Chino Basin reveals and illustrates several realities of adaptive groundwater management. The recurring presence of conflict and the need for good conflict resolution processes is one of those realities. There are others. Adaptive management is time- and information-intensive. Paying attention to, and gathering good information about, the many interconnected factors and phenomena that affect and alter a groundwater basin requires sustained effort and is costly in both monetary and non-monetary ways. The idea of learning makes adaptive management sound attractive: Adaptive management to changing conditions (e.g., population growth, cultural or climate change, better theory or understanding, new measurements) allows for more resilient long-­ term management and potentially provides a bridge within and across generations for addressing the longer term issues of groundwater sustainability. (Gleeson et al., 2012: 22)

The reality of maintaining a commitment to learning is more difficult. It requires leadership, patience, and resources (Hoffman & Zellmer, 2013). Institutional design can help: combining planning periods, reporting requirements, and review processes may embed the learning commitment into decision making (Clarvis, Allan, & Hannah, 2014; Cosens et al., 2018). Chino Basin illustrates this with agreed-upon updating and resetting timelines plus the reporting activities that provide the information base for those reviews and updates. Adaptive management requires what may sound ironic or even contradictory: an institutionalized and stable long-term commitment to learning and change (Biber, 2013; Hoffman & Zellmer, 2013; Miller, Hamlet, & Kenney, 2016). This is not an easy combination to develop, let alone sustain. Nevertheless, both halves of the combination are essential. Without the commitment to learning and the openness to change, people can be expected to default to the maintenance of familiar existing rules and relationships even in the face of undesirable outcomes. Without the stability that comes from institutionalizing review processes, timelines, and requirements to revisit and reset management plans and actions, people can be expected to postpone the challenging work of deliberation and decision making. One of the more important institutional features of Chino Basin governance and management has been the mixture of, on the one hand, the Judgment and a set of long-term agreements (in the case of the 2000 Peace Agreement, for example, a

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30-year commitment potentially renewable for another 30) which, on the other hand, have institutionalized processes such as 5-year reappointments of the Watermaster, 5-year updates to the Recharge Master Plan, 10-year recalculations of Basin Safe Yield, and the opportunity for amendments to the Judgment as needed. Pinter, Lund, and Moyle (2019) used the term “far-sighted incrementalism” to characterize how successful progress is made in water resource management in California; a combination of institutionalized long-term goals with shorter-term actions that are subject to review and revision in light of new understandings and changed circumstances. Even in this fashion, change is hard and not just psychologically. The combination of long-term commitment and openness to change is not an equilibrium state; at best it is a state of balanced tension (Miller et  al., 2016; van Buuren, 2013; Wyborn & Dovers, 2014). People become attached quickly even to a temporary status quo, and adaptive management means that every status quo is only temporary. Every change reshuffles the deck of benefits and costs in ways that cause people to be understandably wary about the hand they will draw next. Changes that improve some people’s position and diminish others’ can provoke not only momentary conflict but lingering resentment. Everything is a negotiation, and what looks like a good deal to someone at one point in time may appear later to have been a terrible idea. Furthermore, deals past and present can accumulate into a tangle that seems to make each new one harder to reach, because it will be seen by someone (perhaps many) as weakening or contradicting or undoing a provision they had agreed to earlier and counted on since.10 Another reality of adaptive management illustrated in Chino Basin is that while adaptation means change, it does not mean starting from scratch or even starting over. The past always follows along, providing both a foundation on which we stand and walls that confine our movements. As more issues are integrated into a management system and more arrangements overlap and intersect, participants can end up in what Bolognesi and Nahrath (2020) have called an “institutional complexity trap” where everything is intertwined with everything else to such a degree that changing anything seems to entail changing everything. As an adaptive management program proceeds over time, the number of change drivers and processes that turn out to be influential and need to be taken into account accumulates. Adaptive management does not simplify decision making; it complicates it by increasing the number of factors to consider and our awareness of the overlap and interactions among the effects of our actions and projects. As “we

 One way that negotiators try to work through this is by coming up with variations on wording to differentiate this deal from a previous one. Those variations themselves can compound, however, as occurred in the Peace II negotiations over whether “desalter-induced recharge” and “Santa Ana River underflow” were the same thing and whether that was part of “new yield,” and with the 2010 Safe Yield Reset Agreement where parties ended up in contention and ultimately in an appeal over the respective meanings of “actual production,” “physical production,” and “assessable production.” These were not merely semantics, either: one meaning versus another had potentially significant financial consequences for the parties and would make some better off at the expense of others.

10

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15  Looking Ahead and Lessons Learned: The Prospect of Continual Adaptation

increase the number of decisions to be made which the flexibility of adaptive management specifically requires – we increase the demands on our decisional resources, perhaps beyond their limits” (Biber, 2013: 950). Decision making processes in Chino Basin were complicated already, before the onset of adaptive groundwater management. The governance structure, with more than a dozen agencies, producers organized into pools, joint-powers authorities operating physical facilities, overlapping memberships among all of the above, adjudicated pumping rights, court supervision, state and federal involvement and regulatory oversight, and so on, now bears the weight of a complex adaptive management approach.11 The resolution of conflicts and the implementation of new actions seem to grow more detailed and challenging each time. It remains to be seen how this will work out in the short term as the parties deal with implementing the 2020 OBMP Update and the 2020 Storage Management Plan, and in the long term as both the policy climate and the meteorological one continue to change. Given all that adaptive management requires of us, no one would be surprised if people gave up the fight and surrendered to “the lords of yesterday.” It is remarkable when they do not. In Chino Basin so far, somehow the stakes have been high enough or the commitment has been strong enough – or both – that people have stayed with the adaptive approach despite how hard it is. They have fought and made peace, repeatedly. They have made plans and forecast the future, sometimes accurately and sometimes not. They have innovated but also compromised. They have designed and created institutions, changed some of them, and left others in place whether or not they still worked well. They have learned a tremendous amount but are sometimes unsure of where to go from here. It has all been very human. As stated in the beginning of Chap. 1, natural resource management is not really about managing the natural resource. It is about managing human beings and their uses of the resource. That has been true in Chino Basin for as long as people have been there, relying on its water. It still is.

 In March 2016, Judge Reichert requested additional briefings from the opposing parties concerning the 2015 Safe Yield Reset Agreement (SYRA) discussion in Chap. 14. The reply from Jurupa Community Services District expressed skepticism about whether the Chino Basin governance structure remained up to the task:

11

Over the past two decades the Chino Basin management framework has become a complicated, and often conflicting, set of basin management policies, agreements, concepts, rules and court order that would make Rube Goldberg proud. The Chino Basin management contraption no longer works. There are too many parts, and those parts no longer effectively work together…. [M]anagement of the Chino Basin needs to be simplified and rebuilt around the Judgment and not further complicated by the SYRA and the 2015 Motion.

References

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Cases Chino Basin Municipal Water District v. City of Chino et al., Case No. RCV 51010 in the Superior Court of the State of California for the County of San Bernardino. Orange County Water District v. City of Riverside et al., 173 Cal.App. 2d 137, 343 P.2d 450 aff’d on rehearing, 188 Cal.App.2d 566, 10 Cal.Rptr. 899 (1961). Pomona Land and Water Co. et al v. San Antonio Water Co. et al. 152 Cal. 618, 93 P. 881 (1908). Documents related to Chino Basin Municipal Water District v. City of Chino et al., Case No. RCV 51010 in the Superior Court of the State of California for the County of San Bernardino: Notice of Motion and Motion for Review of Watermaster Actions and Decisions. Submitted by City of Chino, City of Norco, and San Bernardino County Water Works District No. 8, November 9, 1988. Supplemental Memorandum of Points and Authorities in Support of Relief Sought by the Moving Parties on Issues Not Resolved. Submitted by City of Chino, City of Norco, and San Bernardino County Water Works District No. 8, March 1, 1989. Order Approving Amendments to Judgment. Issued by Judge Ben T. Kayashima, December 1, 1995.

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Safe Yield Reset Summary of Non-Binding Key Principles Derived from Facilitated Process. June 11, 2015. Submitted by Chino Basin Watermaster as an exhibit accompanying the Status Report on Watermaster’s Safe Yield Redetermination and Reset. July 10, 2015. Status Report on Watermaster’s Safe Yield Redetermination and Reset. Submitted by Chino Basin Watermaster. July 10, 2015. City of Chino’s Opposition to Watermaster’s Motion Regarding 2015 Safe Yield Reset Agreement, Amendment of Restated Judgment, Paragraph 6. Submitted by City of Chino, January 19, 2016. Opposition to Watermaster’s Motion Regarding 2015 Safe Yield Reset Agreement, Amendment of Restated Judgment, Paragraph 6. Submitted by Jurupa Community Services District, January 19, 2016. Watermaster’s Reply to Oppositions to Motion Regarding 2015 Safe Yield Reset Agreement, Amendment of Restated Judgment, Paragraph 6. Submitted by Chino Basin Watermaster, February 1, 2016. Jurupa Community Services District’s Response to Judge Reichert’s Request for Clarification, March 22, 2016. Submitted by Jurupa Community Services District, April 1, 2016. Tentative Rulings. Issued by Judge Stanford E. Reichert, September 23, 2016. Revised Proposed Order Re SYRA and Response to Questions; Issue for Further Briefing. Issued by Judge Stanford E. Reichert, February 22, 2017. Revised Proposed Orders for Watermaster’s Motion Regarding 2015 Safe Yield Reset Agreement, Amendment of Restated Judgment, Paragraph 6. Issued by Judge Stanford E. Reichert, February 22, 2017. Orders for Watermaster’s Motion Regarding 2015 Safe Yield Reset Agreement, Amendment of Restated Judgment, Paragraph 6. Issued by Judge Stanford E. Reichert, April 28, 2017. Motion for Court Approval of 2018 Recharge Master Plan Update. Submitted by Chino Basin Watermaster and Inland Empire Utilities Agency, October 9, 2018. Motion Regarding Amendments to Restated Judgment, Peace Agreement, Peace II Agreement, and Re-Operation Schedule. Submitted by Chino Basin Watermaster, January 15, 2019. Order Regarding Amendment of Pooling Plan for the Non-Agricultural Pool. Issued by Judge Stanford E. Reichert, March 15, 2019. Findings and Order Regarding Amendments to Restated Judgment, Peace Agreement, Peace II Agreement, and Re-Operation Schedule. Issued by Judge Stanford E. Reichert, March 15, 2019. Order [approving in part and denying in part the appeal parties’ motion]. Issued by Judge Stanford E. Reichert, March 15, 2019. Status Report Regarding Update to the Optimum Basin Management Program. Submitted by Chino Basin Watermaster, August 6, 2019.

Index

A Appropriative Pool, 61, 63, 66–69, 72–76, 81–83, 87, 88, 92, 99, 105, 106, 109, 110, 112, 113, 115, 117, 119–121, 123, 134, 141, 154, 162, 167, 194–196, 198, 199, 201, 203, 204, 206, 223–229, 231, 234–236, 249, 250, 259–264, 275 Atwater, R., 152–154, 192 B Basin re-operation, 196–198, 201, 207, 214, 215, 224, 229, 235, 264 C California Court of Appeal, Fourth District (Fourth District Court of Appeal), 204 California Department of Health Services, 89, 172 California Department of Public Works, 27, 28, 30 California Department of Water Resources, 9, 19–21, 25, 32, 36, 44, 51, 54, 69, 71, 72, 87, 90, 119, 132, 176, 247, 248 California Water Resources Control Board (State Water Resources Control Board), 173, 174, 186, 190, 192 California, State of, as party in Chino Basin, 98 Chino Airport, 192, 193, 205, 216, 218, 219, 245 Chino Basin Facilities Improvement Plan (CBFIP), 175–177, 179

Chino Basin Judgment (1978 Judgment), 65–70, 72, 73, 76, 81, 84, 87, 92, 100, 105, 109, 113, 115, 119, 124, 135, 141, 158, 161, 167–169, 177, 180, 183, 187, 193, 196, 199, 204, 221–224, 228, 229, 232, 246, 249, 251, 256, 257, 270 Chino Basin Municipal Water District (CBMWD), 38, 40, 41, 47, 51, 55–57, 60, 61, 64, 77–78, 80, 105, 126–128, 134, 145, 147–149, 171, 190, 217, 218, 233, 253, 270 Chino Basin Municipal Water District v. City of Chino et al, 61, 256 Chino Basin Protective Association, 23, 27–31, 33, 37, 50, 270 Chino Basin Water Association, 55–56, 60, 81, 270 Chino Basin Water Conservation District, 37, 143, 175, 252, 253, 255, 256, 270 Chino Basin Watermaster, 67, 69, 73, 74, 76–78, 80, 82–87, 89, 91–93, 98–100, 108, 111–113, 115, 130, 132, 133, 145, 146, 148, 151, 152, 157, 161, 162, 168, 172, 174–177, 179, 180, 182, 187, 188, 191, 194, 199, 202, 205, 206, 213, 214, 219, 228, 230, 232, 233, 235, 237, 238, 243, 244, 246, 247, 251–253, 255–257, 260, 264, 267, 268, 272 Chino Basin Water Resources Study, 99, 115, 134, 140, 144, 151, 264 Chino, City of, 75, 84, 85, 92, 97, 103, 125, 158, 182, 183, 226–229, 231, 275 Chino Creek, 14, 19 Chino Creek Well Field (CCWF), 205–207

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2021 W. Blomquist, The Realities of Adaptive Groundwater Management, Global Issues in Water Policy 27, https://doi.org/10.1007/978-3-030-63723-1

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286 Chino Desalter Authority (CDA), 193, 195, 199, 214, 219, 243 Chino Hills, City of, 92, 100 Cihigoyenetche, J., 123–125, 129–131, 134, 178 Cucamonga Creek, 14, 19, 24, 26, 27 Cucamonga Valley Water District (Cucamonga County Water District), 86, 114, 155, 163, 182, 195, 229, 254 Cyclic Storage Agreement, 85, 114, 144, 145 D Desalters, 106–113, 115, 118–120, 126, 127, 141, 143, 145–153, 160, 163, 177, 182, 184, 187–201, 203, 205–208, 213, 214, 218–220, 222, 224–226, 228–230, 242–244, 254, 263, 275 Dougherty, R., 95, 97, 98, 127, 128, 132 Dry-Year Yield Program, 87, 233, 234 E Eastvale, City of, 38, 198 F Fontana Union Water Company, 27, 34–35, 66, 85, 128, 182 Fontana Water Company, 27 Fontana, City of, 84, 162 Fudacz, F., 106, 112, 116, 117, 121, 123–129, 131, 132, 258 G Grindstaff, J., 120, 148, 149, 153, 154 Guitierrez, J., 125 Gunn, J.M. (The Hon.), 122–126, 128–137, 139, 148–150, 152, 154, 157–159, 175, 177, 178, 182, 194, 199–202, 233, 258, 260 H Herrema, B., 264 Hydraulic Control, 187–191, 194–198, 202, 205–208, 213–216, 221, 223, 224, 235, 245, 247, 264

Index I Inland Empire Utilities Agency, 38, 41, 51, 149, 152, 171, 187, 192, 214, 226, 235, 253, 255 Irvine Company, 33–36, 49, 166 Irvine Company v. Fontana Union Water Co. et al, 33–34, 50 J Jurupa Community Services District, 38, 100, 115, 156, 193, 198, 199, 205, 206, 219, 227–229, 254, 278 Jurupa Valley, City of, 38, 193, 198, 216 K Kaiser Industries (Kaiser Steel), 66, 111, 119, 132, 200, 216, 219 Kavounas, P., 68, 227, 231, 232, 260 Kidman, A., 125, 163 L Levin, M., 127, 132, 152, 155 Los Angeles, City of v. City of San Fernando et al. (the San Fernando decision), 61–66, 70–72, 196 Los Angeles Counties, 16, 28, 37, 38, 45, 54, 56, 58, 62, 78, 133, 171 M Main San Gabriel Basins, 17, 56, 58, 59, 62, 64, 71, 72, 77, 117, 118, 123, 130 Manning, K., 201, 227, 257 Markman, J., 106, 132, 134, 149 Maurizio, D., 227 McPeters, T., 64, 128, 192, 258 Metropolitan Water District of Southern California (MWD) (Metropolitan and Metropolitan Water District), 36–42, 54, 55, 59, 69, 80, 82, 84–88, 92–95, 97–99, 113, 114, 121, 127, 144, 145, 148, 153, 170–172, 176, 177, 179, 186, 198, 203, 205, 206, 217, 232, 233, 243, 256 Milk Producers Council, 108, 146 Monte Vista Water District (Monte Vista County Water District), 84, 100, 121, 123, 125, 149, 164, 182, 184, 194, 195, 229, 244, 254, 262, 263

Index N Norco, City of, 38, 92, 97, 198, 212 O Ontario International Airport, 9, 193, 206, 216, 217 Ontario, City of, 44, 66, 75, 84, 86, 94, 97, 114, 127, 199, 205, 217–219, 227–229, 262, 263, 275 Optimum basin management plan, 87, 88, 92, 94, 98 Optimum Basin Management Program (OBMP) (Optimum Basin Management Plan), 70, 92, 94, 98, 100, 133–136, 139–164, 166, 169, 170, 173–176, 180–182, 184, 187–189, 192, 194, 197, 199, 200, 202, 206, 208, 219, 221–223, 233, 236–238, 246, 247, 251, 264, 275, 278 Optimum Basin Management Program Update (OBMPU), 236–239, 253, 264, 271 Orange Counties, 14–16, 18, 24, 31–34, 40, 43–45, 47, 50, 52, 58, 59, 80, 89, 105, 107, 145, 146, 173, 185, 186, 212, 253–255, 272 Orange County Sanitation Districts, 89, 145–147, 153, 255 Orange County Water District, 34, 39–41, 45–50, 56, 58, 112, 147, 149, 173, 186, 192, 212, 214, 253–255, 270 Orange County Water District v. City of Chino et al., 45–50 Orange County Water District v. City of Riverside et al., 15, 39–42, 50 Overlying (Agricultural) Pool (Agricultural Pool), 60, 63, 65, 66, 68, 72, 73, 75, 76, 81, 82, 89, 108, 111, 123, 263 Overlying (Non-Agricultural) Pool (Non-­ Agricultural Pool), 73–75, 109, 110, 204 P Peace Agreement (Peace I), 139–164, 166, 169, 173–175, 177, 180, 184, 187, 192, 194, 197, 200, 202, 221–223, 229, 230, 233, 236, 246, 251, 264, 271, 275, 276 Peace II measures, 197–201, 203, 204, 214, 223, 251, 262, 264 Peters, D., 16, 20, 61, 80, 83, 85, 86, 91, 93, 100

287 Pomona, City of, 38, 44, 66, 75, 114, 156, 162, 183, 229, 244 Pomona Valley Municipal Water District, 38, 40, 59, 78, 253 Prado Basin, 208, 212–216, 220, 245, 247, 252, 268, 271, 272 Prado Basin Habitat Sustainability Committee, 19, 214–216, 247, 252, 268 Prado Dam, 15, 16, 18, 19, 21, 35, 36, 39, 44–48, 50, 51, 173, 185, 186, 206, 211, 212, 244, 245 R Recharge Master Plan (RMP), 143, 160, 169, 172, 174–176, 180, 203, 252, 255, 271, 277 Recharge Master Plan Update (RMPU), 162, 177–180, 184, 202, 247, 252, 264, 271 Reichert, S. (The Hon.), 221 Riverside, City of, 9, 14, 41 Riverside Counties, 16, 27, 33, 38, 41, 56, 78, 166, 198, 255 Rossi, J.V., 159, 201 S San Antonio Creek, 14, 17, 19, 25, 26 San Antonio Water Company, 27, 182 San Bernardino Counties, 14, 16, 26, 27, 30, 33, 37, 38, 56, 83, 92, 148, 166, 218, 252, 254, 257, 262 San Bernardino County Flood Control District, 25–27, 37, 83, 84, 143, 168, 175, 253, 255, 256, 270 San Bernardino County Superior Court (California Superior Court for the County of San Bernardino), 257 San Bernardino County Water Works District No. 8, 84, 92, 100 San Bernardino Valley Municipal Water District, 47, 50, 52, 173, 212, 255 Santa Ana Regional Interceptor (SARI), 89 Santa Ana Regional Water Quality Control Board (Regional Water Quality Control Board and Regional Board), 106, 145, 188, 190, 191, 253–255 Santa Ana River, 9, 10, 13–19, 21, 24–28, 31–41, 43–55, 78, 80, 92, 97, 104–108, 112, 130, 144–146, 153, 169, 173, 174, 185–188, 190, 196, 206, 208, 211, 212, 220, 222, 224, 232, 242, 244, 245, 247, 250, 253–255, 268, 270, 272, 275

Index

288 Santa Ana River Judgment (1969 Judgment), 35, 44, 50–52, 55, 80, 97, 107, 173, 185, 186, 253, 255, 257, 275 Santa Ana River Water Company, 193, 198 Santa Ana River Watershed Group, 145, 146, 153 Santa Ana Watershed Project Authority (SAWPA), 49, 50, 88, 89, 99, 106, 107, 109, 143, 145–149, 153, 162, 175, 187, 189, 192, 193, 253–255, 275 Scalmanini, J., 136, 150, 151, 154–159, 163, 197, 201 Schneider, A., 132–134, 136, 140, 141, 149–159, 163, 182, 199–201 Slater, S., 153–156, 188, 201, 225, 264, 276 Smith, G., 2, 94 Stark, D., 55, 64, 92, 127, 128, 158, 272 State of the Basin reports, 20, 167, 176, 179, 181, 183, 206–209, 216, 246, 254 State Water Projects, 86, 105, 170, 269, 270 Stewart, T., 115, 123, 129, 131, 134, 140–142, 149, 151, 152, 154, 156, 159 Storage Framework Investigation, 235, 236 Storage Management Plan, 145, 222, 234–236, 238, 264, 276, 278 Stringfellow Acid Pits, 79, 88–90, 216 Sustainable Groundwater Management Act (SGMA), 248–252 T Tanaka, G., 155, 163 Three Valleys Municipal Water District, 38, 78, 113, 134, 199, 226, 233, 243, 253, 256

Trager, S., 15, 24, 31, 33, 34, 47, 48, 89, 91–95, 97, 98, 100, 106, 112, 272 Turner, D. (The Hon.), 1–10 U Upland, City of, 27, 75, 84, 218, 229 U.S. Army Corps of Engineers, 15, 50, 173, 212, 214, 254 U.S. Bureau of Reclamation, 214, 254 U.S. Environmental Protection Agency, 254 U.S. Fish and Wildlife Service, 212, 214, 254 U.S. Geological Survey (USGS), 26, 45, 50, 51 W Water Conservation Association, 27, 32–34 Water Facilities Authority, 84, 254 Watermaster Advisory Committee, 73–78, 81, 83, 86–89, 95, 99, 106, 110, 114–118, 120–124, 127, 131, 132, 149, 178, 183, 225–227, 231, 236, 253, 256, 258, 261, 262 Western Municipal Water District (Western Municipal Water District of Riverside County), 38, 41, 47, 50, 51, 59, 78, 88, 99, 107, 112, 134, 147, 149, 157, 192, 193, 197, 198, 201, 205, 219, 253, 255 Wildermuth, M., 68, 100, 115, 134, 140–144, 146, 147, 149–151, 154, 181, 187, 189, 197, 201, 206, 223, 224, 227, 230, 232, 235, 264 Wildermuth Environmental Inc., 19, 20, 176, 179, 183, 208, 264