Enforcing Order 95-10

Mayors and other Monterey Peninsula notables have had their knickers in a twist ever since the news broke two weeks ago that the State Water Resources Control Board is considering actually enforcing their Order 95-10. What’s the big deal? Well, Order 95-10 decrees that our friendly water company, Cal-Am, has the right to pump only 3,376 acre feet per year of water from Carmel Valley – the source of most of the Monterey Peninsula’s water. Last year Cal-Am kept water in Peninsula taps by pumping 11,285 acre feet. Complying with Order 95-10 would thus mean a 70% cutback in Carmel Valley pumping and, obviously, require some pretty hefty cutbacks in water use by Monterey Peninsula residents and businesses.

So where did this Order 95-10 come from, how come it’s never been enforced, and why has the SWRCB suddenly gotten interested in enforcing it now?

Although the SWRCB had been studying the problem of Carmel River water rights for decades, Order 95-10 was issued in 1995 just months before voters went to the polls to decide whether to build a new dam on the Carmel River. Coincidence? We don’t think so. In fact, the Order didn’t just put this extremely tough limit on Cal-Am pumping, it also promised to lift the limit if the dam was built. In other words, the SWRCB’s message to the Monterey Peninsula was “build a dam or we’ll cut off your water.”

This certainly looked, smelled and tasted like an attempt to twist voters’ arms and extort a yes vote on the dam and, predictably, there was a good deal of unhappiness over this state agency’s heavy handed interference in local politics. Especially since the dam was clearly a bad idea for a list of reasons far too long to get into here. In any event, the voters called the SWRCB’s bluff by rejecting the dam and, sure enough, for 13 long years the SWRCB has pretty much acted like Order 95-10 doesn’t exist.

So why was the SWRCB so keen to see us build a dam on the Carmel River? Why would they have wanted to push a yes vote on an environmentally destructive dam that, at enormous expense to the ratepayers, would have provided water for a wave of new development while leaving current residents worse off than before in the event of a prolonged drought? Who knows? But the fact that Marc Del Piero (a former member of the Monterey County Board of Supervisors and a good buddy of many of the dam’s promoters) happened to be serving on the SWRCB in 1995 might be a clue.

Which brings us to the most interesting question of all. Why, after 13 years, is the SWRCB suddenly expressing interest in enforcing Order 95-10?

Well it could be they’re starting to feel a bit embarrassed about the whole thing. Scaring the pants off people by issuing draconian orders is all good fun, but people start to lose respect for you after a while if you never follow through. Maybe they think their fearsome reputation is starting to slip … but probably not.

Maybe they’re just frustrated at the Monterey Peninsula Water Management District and Cal-Am’s slow pace toward developing new water supplies and reducing reliance on Carmel Valley pumping. It’s true that small projects that could have replaced the water pumped from Carmel Valley and could have been brought on line relatively quickly have been abandoned. They were opposed and defeated by development and real estate interests bitterly opposed to any project that doesn’t include plenty of water for new growth (for fear that once the immediate water problems are solved, the public won’t support a project that’s main purpose is to accelerate development).

On the other hand, Cal-Am’s big regional desalination plant (with plenty of capacity to provide water for growth) is moving forward about as well as any project of that magnitude can be expected to (i.e. slowly, but there’s nothing anyone can do about that). So it’s hard to see exactly what the SWRCB might hope to achieve by holding people’s feet to the fire at this point (if they’d wanted to reduce Carmel Valley pumping more quickly, they should have threatened to enforce Order 95-10 back when the water district was caving in to pressure to abandon its plan for a smaller, Sand City-based desal plant). So although this explanation seems to be more or less the official line, we have to conclude that it really doesn’t make much sense either.

Has the SWRCB suddenly developed a new and heartfelt concern for the steelhead, red-legged frogs and other public trust resources of the Carmel River being harmed by Cal-Am’s relentless pumping? Well, in a way, maybe they have. Just one month before the SWRCB’s announced their new intention to enforce Order 95-10, the Carmel River Steelhead Association issued a formal notice of intent to sue the National Marine Fisheries Service for violating the Endangered Species Act by failing to protect the Carmel River steelhead. Is the SWRCB afraid this litigation could result in a federal agency invading their turf and regulating pumping in Carmel Valley? Are they afraid of finding themselves in the politically embarrassing position of having invited a federal takeover by failing to enforce their own order?

Ah … now we may be on to something. There’s nothing like a turf battle between state and federal agencies to stimulate real action on the ground!

November 2009 Update! A Cease & Desist Order has now been issued. Read all about it here.

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2 Responses to Enforcing Order 95-10

  1. Larry Hampson says:

    FYI – (a historical footnote on Order 95-10 and the New Los Padres Dam project). The State Water Resources Control Board issued Order 95-10 the same day as they issued their decision about the water rights in the Carmel River that would allow the New Los Padres Dam (NLP) to be built. But Order 95-10 was linked to NLP in passing. NLP was described to the State Board staff by the Water District and Cal-Am as a way to legalize the water supply for the Monterey Peninsula and State Board staff took note. The processes to arrive at Order 95-10, a Final EIR for NLP, and the issuance of water rights had begun many years earlier (decades for water rights) and had moved along the same tracks. But when Order 95-10 came out, it mentioned NLP only in passing in the section that discusses why SWRCB did not propose punitive measures against Cal-Am for illegal diversions (SWRCB noted that there were several efforts underway to mitigate for damage to the river). What the Order is explicit about, which is a key part in the most recent actions, is that Cal-Am must obtain water from the Carmel River in accordance with State water law.

    As far as why SWRCB chose 2008 to follow up on Order 95-10, it’s my understanding that there is a newly formed group within the State Board to enforce its orders. In the past, the Monterey Peninsula area has obviously had trouble moving forward in solving the water supply problems. Perhaps the new SWRCB group saw that it was time to step into the fray. But, after witnessing and participating in the testimony at the 2008 hearings on a proposed Cease and Desist Order, I’m not sure they expected the fight from the Monterey Peninsula that they received.

  2. Ken Ekelund says:

    XT, This article was really helpful for me to understand how we got to this point.
    I haven’t seen anything in the media on this at all.
    I wonder if anyone will ask Mr del Piero before the election, if he has any regrets for his central role on 95-10.
    I would really like to know if he feels he learned anything or has changed his mind at all.
    The article is still as applicable today as it was in 2009. Thanks.

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