The weasel word

Often, we witness how public officials, squirming under mandates causing discomfort for their more powerful constituents, convert "shall" to "may" in a straightforward regulation. This effectively closes the door to enforcement and opens a door to deal-making, bribery, intimidation, and the other forms of daily corruption in government that its practitioners call "balance". But the global and local environment are already so far out of balance and the destruction resulting from this unbalanced state gains velocity every day. 
Was our skepticism about state groundwater laws just cynicism or was it historically justified? We have ask if it wasn't the latter, in view of the weasel word "substantial" that has appeared in drafts of the regulations being written to enforce the groundwater-sustainability legislation.
When we answer this question among ourselves, our minds turn to memories of state officials from the Department of Water Resources and other resource agencies we have observed in local meetings over the years. A constant theme of ambivalence runs through their words and behavior. Sometimes their faces almost twitch like frog legs in a skillet, still jumping around as if alive although about to be served for dinner.
What these "front line," lower ranked bureaucrats know is that regulation and enforcement of virtually any environmental law is perilous for their careers, And the peril comes with words like "substantial" and a "may" replacing a "shall." These weasel words create a direct pipeline from special interest groups pressure and resource-agency bosses. When an honest staff member recommends honest enforcement of law, the weasel words make it very easy for his bosses, responding to political pressure, to undercut her recommendation and perhaps her career.
As one former California Department of Fish and Game put it: "I work for the governor."
"No, you don't," replied a member of the Badlands Journal editorial board. "You work for the people of California and the laws that protect their environment."
But, when the governor's donors and supporters want to break environmental and public process law and regulation, when in addition to their financial and social advantages they are given weasel words, public health and the environment are put at great disadvantage.



Circle of Blue

California Groundwater Regulation Hangs on a Few Words




May 5, 2016/in CaliforniaWater Policy & Politics /by Brett Walton
As a key deadline approaches, a debate over word choice.



Water is pumped from a groundwater well for farm irrigation in Kern County, California. Photo © J. Carl Ganter / Circle of Blue
By Brett Walton, Circle of Blue
It was never going to be easy.
California’s attempt to exert tighter control over groundwater use, the purpose of a landmark 2014 state law, was designed to be a compromise between state authority and local oversight.
The tension dogged the writing of the law two years ago, and is playing out again as the California Department of Water Resources (DWR) drafts the regulations that will put the law into practice.
The regulations in question are those that the state will use to evaluate groundwater sustainability plans, the 20-year planning documents required of local management agencies by the 2014 law. The debate today hinges on a single word repeated throughout the 62-page draft regulations. That word is “substantial,” used in phrases such as “substantial compliance” with the rules.
Opinions are divided. Legal scholars, scientific watchdogs, and environmental groups, some befuddled by its inclusion, argue that “substantial” weakens the law by allowing local agencies to avoid all of the mandates for data sharing, monitoring, land use, oversight, and others.
It’s going to be critical that this is successful for not only groundwater but for the entire water management of the state of California.”
–David Gutierrez, California Department of Water Resources
Water agencies and farm lobbies, advocates of greater local control, and other legal experts say that the phrasing acknowledges the diversity of California’s groundwater basins. Not all local agencies have the same technical or financial capacity. Management actions will evolve, say advocates of “substantial,” in response to changing hydrological conditions. Not all provisions are equally urgent or necessary for all areas, they assert.
The Department of Water Resources argues that the language allows for flexibility within basins while retaining the mandate that groundwater be managed sustainably.
“This doesn’t mean that agencies can omit sections or articles of the regulation and hope that we’re going to deem it an adequate plan,” said DWR’s Trevor Joseph at an April 20 meeting of the California Water Commission. “We reserve the right to determine what is substantially compliant, not the local agency.”
But members of the California Water Commission find the substantial compliance language confusing and unnecessary. Five of the eight members said so at the April 20 meeting and asked for its removal.
“It seems to me that it’s a second-tier evaluation,” said Maria Herrera, a commission member. “It gives the department a lot of discretion and doesn’t make it very clear to me or the public what the department will use to deem a plan adequate or not.”
“Substantial is a qualifying word and I think it creates confusion, so I would ask that we consider saying compliance,” said Armando Quintero, another commission member.
Decisions on the language will be made soon. The DWR will submit final regulations to the California Water Commission to review before the May 18 meeting. The regulations will be adopted by June 1.
“It’s going to be critical that this is successful for not only groundwater but for the entire water management of the state of California,” said David Gutierrez, DWR’s chief of sustainable groundwater management implementation.
A First Attempt at Groundwater Regulation
On September 16, 2014, Gov. Jerry Brown signed into law the Sustainable Groundwater Management Act, a trio of bills that sought to accomplish what California, unlike its neighbors, had never done — develop statewide standards for regulating groundwater use.
The bill set in motion a cascade of deadlines. Local governments must form a groundwater management agency by June 30, 2017, and then develop a plan for managing the resources, due by 2020 or 2022 depending on the severity of the area’s groundwater decline. The state, for its part, had to define the boundaries of the basins and write the rules for evaluating the management plans.
The draft regulations, posted in February, drew hundreds of comments with roughly two thousand recommended changes. The “substantial” compliance language resurrected the familiar debates of local versus state control, and basin-by-basin flexibility versus state-ordered prescriptions for plan content and approval.
The California Farm Bureau Federation, the voice of big agriculture, and the Association of California Water Agencies, which largely represents municipal interests, support the substantial compliance standard, arguing that it is appropriate for a state with such hydrological and institutional variety among its 515 groundwater basins.
The regulations matter. California is home to nine of the country’s top 10 farm counties by sales. The state’s $US 54 billion agricultural economy produces all the almonds, raisins, walnuts, pomegranates, pistachios, and artichokes that are grown in the United States. How the groundwater law is implemented will determine how much water is available to one of the world’s most bountiful farming belts and how resilient the region’s farms, towns, and industries will be to future water scarcity.
The regulations matter for reasons other than agriculture, too. They are intended to avoid six “undesirable results” that were spelled out in the law: land subsidence, saltwater intrusion into freshwater aquifers, a loss of aquifer storage capacity, a decline in groundwater levels, polluted groundwater, and depletion of river flows or springs.
The Nature Conservancy and a coalition of 20 environmental, tribal, and clean water groups object to the use of substantial compliance. “The term substantial compliance is unclear and it makes the standard for evaluation less precise and more subjective,” wrote Sandi Matsumoto and Jay Ziegler of The Nature Conservancy in comments submitted to DWR.
Juliet Christian-Smith, a climate scientist at the Union of Concerned Scientists, one of the coalition groups, says that the regulatory language is at odds with the intent of the act, which is based on achieving measurable goals.
“In this case, there is no A for effort,” Christian-Smith told Circle of Blue. “Either you stop the groundwater decline or you don’t. The point of the act is to move away from a soft approach to a data-based, scientific approach.”
Dave Owen, a professor at the University of California Hastings College of the Law, said that the draft language invites the possibility that the DWR could accept plans that include most, but not all of the requirements.
“Local agencies will have to make tough choices that are politically difficult” when they write their plans, Owen told Circle of Blue. Limits, restrictions, and poking into what once was personal business are never an easy sell. “There’s the potential for slippage, for plans that aren’t restrictive, with the hope that DWR will let them slip through,” Owen said.
Owen and two colleagues submitted comments to the DWR that expressed their concern that the word choice undermines the act.
Other legal experts are more sympathetic to the difficulty of implementation.
Eric Garner, a lawyer with Best, Best and Krieger and author of the legal text California Water, said that the lack of groundwater data, compared to surface water data, makes the management effort much more difficult than for rivers or streams.
“There’s going to be trial and error in this process,” Garner told Circle of Blue. “There are going to be issues with the plans. There have to be adjustments. Substantial compliance is a recognition that there is not a simple recipe to get every basin to sustainability.”
Los Angeles Times
Borrego Springs water crisis begins and ends with farming
J. Harry Jones
The water crisis in Borrego Springs is as simple to understand as it will be difficult to solve.
At the crux is farming.
Citrus and palm ranches in northern Borrego Springs are sucking huge amounts of water from the underground lake beneath their land — far more than the state is likely to allow in the future.
The problem: Borrego Springs, home to about 3,000 permanent residents in the desert of northeast San Diego County, has no feasible way to import water. It completely relies on an underground aquifer that on average is replenished by nature each year to the tune of about 1.8 billion gallons.
But for decades, the amount of water that has been pumped out of the aquifer has been far greater — most recently, 6.1 billion gallons annually.
Years of overdrafting in the Borrego Valley have caused the water table to drop by as much as 119 feet in some areas, with a 26-foot decline in the last decade.
It's not that Borrego Springs is running out of water. There are, in fact, three aquifers beneath the valley, one atop the other. But as the water table drops, it becomes more and more expensive to pump water out of the ground. If nothing is done, the cost of pumping the water will eventually exceed any economically feasible rationale to continue living there or working the land.
The city of Poway, home to nearly 50,000 people and hundreds of businesses, distributes a bit over 4 billion gallons of water to its users annually. Borrego pumps 50% more water, even though its population is far smaller.
In the northern part of Borrego Springs are farms growing roughly 2,000 acres of grapefruit, lemons, tangerines, tangelos and palm trees. Many have been in operation for more than half a century, and all have clear rights to the water beneath their land.
The farms use 70% to 80% of the water pumped out of the ground. The rest is consumed by five golf courses, resorts and residents, most of whom get their water from pumps controlled and distributed by the Borrego Water District.
It's been known since the early 1980s that an overdraft problem exists. What has changed recently is a threat from the state, which last year enacted laws aimed at communities that rely on underground water.
There are more than 500 such sole-source basins in California, including 127 that have been determined to be of medium and high priority.
Borrego is placed in the medium category not because its problem isn't immense, but because relatively few people are affected. More important, the Borrego Valley has been designated to be in "critical overdraft," one of only 21 basins in the state (most are in the Central Valley) and the only one south of Los Angeles.
The state is demanding that the community — in this case, the Borrego Water District in conjunction with the County of San Diego — come up with a plan by 2020 to bring the basin into sustainability. If they don't, the state will take over.
"You know the saying, 'I'm here from the government. I'm here to help you.' That's usually not a good thing," Borrego Water District General Manager Jerry Rowling told a town hall gathering in late March.
The plan then must be implemented and progress shown up until 2040, by which time the amount of water being pumped out of the ground can be no greater than what is naturally recharged.
At the town hall, Borrego Water District President Beth Hart was asked what the chances are that farmers would cut back usage to anywhere close to the levels that will be needed.
"I wouldn't have had a good answer three years ago," Hart said.
That was when the state Department of Water Resources drew together the largest pumpers in the basin — farm owners, golf course heads, state park representatives, business owners and residents — a group that eventually called itself the Borrego Water Coalition.
Hart said initially the farmers' positions were intransigent.
"What we initially heard was that no one was going to do anything except sue somebody else," she said. "But what we found after talking with them is businesspeople — businesspeople [who want to either] continue their business or make themselves an exit strategy that would work."
She said the farmers can see the reality. Because of the new water sustainability rules, they will either have to leave the valley or find some way to sell their crops at high enough prices to cover the costs.

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The district has already been approached by nonprofit land-acquisition and environmental groups that are waiting to see whether an opportunity arises, Hart said.



Borrego Springs is surrounded by the Anza-Borrego Desert State Park. The Anza-Borrego Foundation, which for decades has been purchasing land to add to what is by far the state's largest park, is one of those groups.

"We certainly know how to do it," said Paige Rogowski, the foundation's executive director. "This would be new territory for us specifically with agriculture land. But if we can work it out, we're glad to help."
Wealthy part-time residents with vacation homes in the area and their own foundations have also expressed willingness to help with the problem, Hart said.
One idea in its infancy could involve UC Irvine, which has a desert research station in the area.
"They are interested in taking farmland that is fallowed and seeing what it would take to restore it," Hart said recently.
Los Angeles Times
The wells have run dry in this California town, so why is a $1.2-million water system untapped?
Matt Stevens
Two long summers ago, after Adela Ramos Arellano's pump first began to sputter and wheeze, the 37-year-old field worker would return from a day spent laboring beneath the blazing sun to a home with no water.
Since then, "the cavalry," as one onlooker called it, has descended on East Porterville, an unincorporated area in Tulare County that claims about 12% of the state's failed wells. No fewer than nine government agencies and nonprofit organizations have had a hand in helping the community, which drew international media attention for its exceptional suffering in the fourth year of California's drought.
But residents and even some government officials say progress has been painstakingly slow, if not altogether ineffectual. Last year, for example, state officials sank $1.2 million into a new well that remains untapped because of quarreling among government agencies.
As a result, the drought continues to punish the people of East Porterville. Even now, some residents have to use portable showers in a church parking lot and dump a bucket of water into their toilets to flush. 
In bureaucrats' latest and most ambitious attempt to help, state officials are preparing to build a municipal water system for East Porterville. They want to connect 500 homes by the end of the year and ultimately deliver safe, drinkable water to all 1,750 parcels here by the end of 2017.
"We'll have to see if they come through with their promise," Ramos Arellano said in Spanish. "I have hope. That's the last thing I'm going to lose."
At first, the solutions were crude. The nearby city of Porterville spent much of 2014 delivering water to fill people's plastic, 300-gallon containers, which had mostly been donated by dairies and were unsuitable to drink from.
Residents relied on bottled water — at first donated, then provided by the state and county, but even getting that going proved difficult. A drought emergency, officials quickly discovered, did not fall neatly into traditional state grants, and there was no blueprint outlining exactly how to deliver potable water to such a large area.
"In any typical disaster you have something you can see. You can fly, drive, whatever, and it's clear," said Andrew Lockman, manager of the Tulare County Office of Emergency Services. "We have a basic emergency management structure … a framework, but this was a new type of incident. We had to come up with a new response."
As bureaucrats puzzled over the possibilities, Ramos Arellano's family had to haul water in by the bucket, even after they got a dairy container. Every other day they trekked to the fire station for a refill because the deliveries did not come often enough.
By January 2015, officials rolled out a short-term plan. The county worked with nonprofit organizations and used state disaster funding to install massive green tanks that could hold thousands of gallons of drinkable water and be connected to a home's plumbing. Those tanks now consume more than 160 frontyards.
Families say they have learned to monitor the thin red band that slides down their tank's PVC pipe as water inside dwindles. As the ring falls, dirty dishes pile up and toilets fill until the water hauler comes rumbling down the street.
"These families need so much more help than a tank," said Roman Hernandez, a 57-year-old pastor who, for the last several months, has watched people visit his church's parking lot to sign up for bottled water or use the mobile showers.
His suggestion? Drill more wells — or at least get water from the one that has already been drilled.
Last summer, the county and the state agreed to construct a well using $1.2 million from the California Department of Water Resources. Construction was completed in October, but infighting trumped people's desperate need for water.
The county had agreed to sell the well to the city of Porterville, which had staff members who could operate it. But the city, county and state disagreed on who should get water from the project.
The dispute ultimately led the state to pull out of the discussions and draw up plans for a facility where water haulers could fill up without involving the city. Porterville reacted by cutting off Tulare County's access to water from its municipal system. The county then had to scramble to find new water sources to fill the green tanks in residents' yards.
Since the fall, the well has remained hidden and untapped at the end of a dirt road, near the spot where this city's mini-malls give way to endless alfalfa. The bickering among agencies is beside the point for residents like Guillermina Andrade, struggling in a forgotten corner of town.
On a recent afternoon, Andrade, 38, stepped gingerly around dozens of boxes and buckets scattered and stacked on the floor of her modest home. The boxes hold jugs of Sparkletts water for drinking; the buckets hold tank water for dishes, bathing and flushing. Inside the bigger buckets, smaller ones float, to be used as giant measuring cups.
Andrade stood in the shower and demonstrated her routine; it is the same whether she is flushing the toilet or trying to bathe: Scoop, lift, pour.
"Very difficult," she said in Spanish. "Hopefully [something] will happen soon. It's been two years already."
If everything goes according to the state's plan, sometime this year construction crews will tear up Andrade's street, install miles of water mains and ask her to sign an agreement that will make her a customer of the city of Porterville.
As a result of the multi-agency tangle over the well, the Department of Water Resources sought a more aggressive and permanent solution. Frustrated officials decided they would build a municipal water system for the people of East Porterville themselves.

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The system, if approved by local officials, would draw from the new well, pumping water through newly laid piping to about 500 homes in East Porterville and a portion of Porterville.



The project will cost about $7 million. The state is currently spending about $500,000 a month on the tank and bottled water programs.

The State Water Resources Control Board, meanwhile, is in charge of a longer-term plan to install fire hydrants, create water storage facilities and hook up the remaining 1,250 homes in East Porterville as early as the end of 2017.
"There are a million ways this can go wrong," said Greg Farley, drought manager for the Water Resources Department. "This is like putting in a water system for a whole city in a year. It's a big undertaking."
And in this town, getting the word out to residents, giving them a voice and securing their trust could also prove difficult.
Federal data suggests that more than a third of the population falls below the poverty line; about 75% of the community is Latino; many don't speak English, many more prefer not to speak up. And the federal data does not count the hundreds of people who lack proper immigration authorization living in East Porterville.
Community and nonprofit leaders say many of East Porterville's immigrants have been reluctant to sign up for government assistance, all but certain they will be deported. Some parents have worried that if they admit that their homes are without water, officials will seize their children. And county officials say they are still struggling to get renters on the water tank program, in part because landlords don't want code-enforcement officers to visit and discover violations.
"There's a lot of fear out there right now," said Ryan Jensen of the Visalia-based nonprofit Community Water Center. "The voice that's missing at that table is East Porterville itself."
On a recent Tuesday morning, a steady flow of locals stopped at an outpost on Plano Street, handed volunteers their punch cards and loaded bottled water into the trunks of their cars. One man said he was unaware of any state plan to build a water system. Another said he was concerned that if he agrees to hook up to the city's water system, engineers will cap his well and officials will limit how much city water he can use.
To help ensure they get a say, residents recently formed the group East Porterville for Water Justice.
Rafael Surmay, 47, attended a meeting in April, and now he recognizes neighbors who are also out of water when he runs into them around town.
In 2000, Surmay moved his family from San Jose to East Porterville, where he could buy land and fulfill his California dream for just $50,000. Six years later, roses bloomed in his yard, Surmay's youngest child was born, and the postman even had enough money to buy another property on the west side of town.
"Everything was perfect," he said.
Then one day, about two years ago, Surmay was on vacation with his family when a neighbor called his wife with "bad news."
When he returned home to a dry well, he unwittingly began what has become a familiar sequence for people here: He hooked up to a generous neighbor's working well and got a 300-gallon container, then a 2,500-gallon green tank.
What he did not do was abandon his house — not when the roses wilted, not when his neighbors fled, not when a banker suggested it might be best. He did not leave even though he owned that other property on the west side of town — a house with running water hooked into the city's system.
No, this house in East Porterville "is my first love," he said.
So he modified his mortgage and bet big on the state.
"There is a solution for everything," he said, standing tall in front of his yard. "I wanna fight."
Fresno Bee
Porterville, Clovis lead central San Joaquin Valley in population growth in 2015

Porterville annexed more than 550 acres of county area with more than 2,700 residents
Clovis relied on strong housing growth, which is expected to continue this year

Fresno remains the state’s fifth-largest city; Fresno County is 10th largest
Marc Benjamin
Porterville was the fastest-growing city in California last year, and Clovis, which was one of the fastest-growing cities in 2014, cracked the top 10 again.
But the two cities were in the top 10 of cities above 30,000 for different reasons.
Porterville’s population grew by more than 3,000 residents, but about 90 percent of them were annexed into the city from six county islands during 2015, according to figures from the Tulare County Local Agency Formation Commission.
Residents of county areas just beyond the city limits wanted dependable utility services, and Porterville pledged to hook them up to city water if they consented to becoming residents, said Ben Giuliani, executive director of Tulare County’s Local Agency Formation Commission, which oversees community boundaries.
By contrast, nearly all the 2.6 percent growth in Clovis was from new homes, and much of that housing increase was in the Loma Vista neighborhood near Clovis East High School, said City Manager Robert Woolley.
Clovis’s population is 108,039, moving it to the state’s 64th largest city from 67th, according to state records.
“We’re anticipating the growth to continue at even a higher pace for the balance of this year,” Woolley said. “There’s a lot of dirt being moved in Clovis right now.”
The city, he said, also is focusing on job growth, noting the announcement of the California Health Sciences University proposal on 70 acres north of Clovis Community Medical Center.
Robert Woolley, Clovis city manager
Work also is continuing on the new northwest Clovis plan, north of Shepherd and east of Willow avenues, the city’s next large growth area. Woolley said new housing subdivisions could begin there as early as next year.
California’s overall population moved to about 39 million after growing in 2015 by 348,000 residents.
Fresno remains the state’s fifth-largest city with 520,453 residents, a 0.8 percent population rise last year. Also among the fastest-growing towns in Fresno County were Parlier and Sanger, which each grew by 2.4 percent. Other Central Valley cities that grew at least 2 percent last year included: Corcoran, 2.1 percent; Lemoore, 2 percent; Dos Palos, 2.2 percent.
Visalia expanded by 1.4 percent to 130,231 residents. Visalia is California’s 45th-largest city. In Kings County, Hanford stayed nearly flat, with 0.9 percent growth to 55,840. Madera grew by 1 percent to 65,474.
Two cities that lost population, Avenal and Chowchilla, were most significantly affected by their state prisons, whose inmates are considered residents in the communities where they are imprisoned.
Avenal’s population fell to 12,373, or by 5 percent. Avenal State Prison’s population dropped by 778. Chowchilla, which has men’s and women’s prisons, lost 415 inmates. Its population fell to 18,547, or 1.3 percent.
Mariposa County also fell by 0.1 percent, dropping to 18,159 residents.

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