Episode 25: Drought and “Egosystem” Management
“I think how we rose to the occasion during the drought was pretty darn cool. I think the fact that it was a necessity, but we also took advantage of it to advance water planning and implementation on a host of issues that have been dormant for many years.”
felicia marcus
A conversation with Felicia Marcus (Stanford University) about community organizing, emergency response systems, and drought in California. Released June 18, 2021
guests on the show
Felicia Marcus
Felicia Marcus is the William C. Landreth Visiting Fellow at Stanford University’s Water in the West Program, an attorney, consultant and member of the Water Policy Group. She most recently served as chair of the California State Water Resources Control Board, implementing laws regarding drinking water and water quality and state’s water rights, hearing regional board water quality appeals, settling disputes and providing financial assistance to communities to upgrade water infrastructure. Before her appointment to the Water Board, Marcus served in positions in government, the non-profit and private sector. Marcus also has an extensive background as a private sector and public interest lawyer, as well as a community organizer, most notably as a founder and general counsel to Heal the Bay. She has a Bachelor of Arts in East Asian Studies from Harvard College, and Juris Doctor degree from New York University School of Law. Learn more about her work here and follow her on Twitter @FeliciaMarcus
Transcript
Faith Kearns
Welcome to Water Talk! We are honored to have Felicia Marcus as a guest today. Felicia is currently a visiting fellow at the Stanford Water in the West program, and has served in many different roles over her career in multiple sectors. She spent many years as the chair of the California State Water Resources Control Board, and has been called everything from a Water Czar by the New York Times, to calling herself an Ego System Manager. And we are really excited to be in conversation with Felicia as we enter into another drought year. And it's just wonderful to actually be able to learn from people who have been at this work for a long time, and have a perspective that some of us who are newer might not have. What was really memorable for you, Sam & Mallika, about this conversation with Felicia?
Sam Sandoval
In my case, something that our audience should listen for is actually how Felicia always talks about listening: listening to farmers, listening to different users. I think that's something that our audience should pay attention to. So that will be the first one. The second one is that also notice how she took the different appointments as a way of service. So she was always thinking of the greater community, and how the work that she was taking on, it was for the benefit of the community as a service, she always thought about all the steps are as you're going to be listening, this service, this being a public servant. I think those are two things our audience should should listen for.
Mallika Nocco
Yeah, I would agree with you, Sam. When I think about this conversation, I was really kind of blown away by Felicia's whole career path and her story, and how she had interacted with all these different communities, her general approach, I really thought that this idea of an ego system manager was really interesting, and how she interacts with different groups. The other thing I thought was interesting is how she has developed expertise in dealing with conflicts. And I thought that was interesting to think through, like, how does somebody really kind of build this expertise as a manager of conflicts or someone who becomes comfortable in conflicts or navigating conflict spaces or navigating emotional spaces. And I thought that some of the strategies that she talks about for doing that were really useful, and not necessarily what I would have expected them to be.
Sam Sandoval
And she also mentioned, so something to look for is that in general, some of these conflicts arise, not necessarily intentionally, some of those are a byproduct of some of the economic activities, most of the times it is not intentional, and she looks for that common ground.
Mallika Nocco
The other thing, I think would be good to kind of provide some context for everybody is what is the California State Water Resources Control Board?
Sam Sandoval
What I understand of the State Water Resources Control Board, is it is an institution that regulates first of all water rights and what the right permits. The second one is that it also regulates water quality and discharges, and for that they have these regional water boards. But the reality is, this is the agency in charge of allocating or curtailing water at different times. And it's the one that also is in charge of applying the public trust doctrine, which is the work that is beneficial for the public, for the entire society, and put that in front of private interest. And that includes putting the environment first most of the times. And that's when it gets into conflict with some private interests that already have been using water without explicitly considering the use for the environment.
Mallika Nocco
All right. So that's a pretty good context provided by Professor Sandoval.
Faith Kearns
It's time to get some deeper insights from our guest Felicia Marcus for this episode of Water Talk.
Welcome to Water Talk. For today's episode, we're really excited to have the opportunity to talk with Felicia Marcus. Felicia, it is truly such an honor to have you as a guest on Water Talk and there are so many things we'd like to talk to you about. But we'd love to start with just hearing a little bit more about your work and your career path. How did you get started working on water? And how did your role evolve to that of a self described ego system manager?
Felicia Marcus
Well, it's funny, I went into public interest law, and I wasn't interested in water law, not to put it aside, but I was interested in all sorts of environmental issues, but not even just environmental issues. I was interested in social justice issues, and a lot of work I was really focused on was being a public interest lawyer of all kinds, oddly enough thinking that one needed to sue government to make anything happen, which can tell you a little bit about how cynical I was after having been in government, on Capitol Hill, before I went to law school. I think it sort of radicalized me in a way.
And then I just, you know, life is a series of strange mysteries. And I've always said, if I have guardian angels, they definitely have a sense of humor, because I was just working on intake one day at the Center for Law in the Public Interest and a guy from the Sierra Club came in to tell me a pretty horrendous story about the city of LA’s ongoing pollution of Santa Monica Bay through inadequate treatment of their sewage. I mean, essentially, everything you flushed down the toilet all ended up in the bay, but some of it ended up on a longer sludge line further out into the bay. And there was actually a proceeding within the water boards going through the Regional Water Board and US EPA, where the city was trying to get a waiver of having to treat their sewage to what are noticeable secondary standards.
So he just came in and said, we need a lawyer. I was just the youngest junior person sitting there on intake. I went down to watch a hearing at the Regional Water Board, because I didn't take a case unless I saw how my potential clients wanted to handle it. I didn't want to represent people who just wanted to insult the decision maker, which is a really dumb strategy, right. And one of the people who kept their eye on the result they wanted to get, and wanted to use tools strategically to achieve a result. So, I went down there that day. And it turned out that one of the main leaders of this group then called, you know, not poetic, but descriptive, the Coalition to Stop Dumping Sewage into the Ocean, you know, no acronym possible there. And lo and behold, it was Dorothy Green, who was a longtime activist in LA that I had known before I went to law school when we were working on water rights issues when I worked for a congressman. She said, oh, I'm so glad you came, here's my testimony, will you give it, I have to go. So I ended up being drafted by Dorothy Green to be her lawyer.
I gave the testimony opposing this waiver. And to make a long story short, I then, you know, became not only their lawyer, but a co founder of what they evolved into, which was a group called Heal the Bay, and we were fighting with the city of LA, but we were fighting - this gets to the egosystem point - we were fighting with LA and you would have thought, if you actually listened to what we said, you would have thought the guys who worked at the Hyperion treatment plant went to work every day for the joy of manufacturing sewage so that they could dump it in the bay and, you know, kill fish.
In fact, you know, once we got to know them, and there's a very long story, that's a story for another day, it became clear that they were actually hard working folks who cared just as much about the bay as we did, who were dealing with a river of human waste coming out 24 hours a day that was the size of the sixth largest river in California. And they weren't being given the resources they needed to do what they went to school to learn how to do. It's very painful. And so we ultimately shifted gears strategically. We created the political will in the city council, in the mayor's office, to get them the resources they needed. And the rest was kind of history where LA went on to break national records for treatment, and really the whole place turned around and did a 180. There's a longer story there. But it actually led to me realizing the power of individual people.
To get to that point, we had a number of meetings, it's easy for me to toss off the how now, but at the time, you know, we went into multi day meetings where the judge on the case, ultimately a federal case was reopened, forced us to sit down together for multiple eight hour days. And he made the city answer all our questions. He also made us listen to the answers. And we thought they were trying to blow us off and I am a lawyer and I was sort of being a brat and I just started asking the same question multiple ways and I was cynically listening to the chief engineer give answers that I thought were evasions. But then I asked the question another way, and Bingo! It was like the cash register just answered the question I had wanted him to answer all along.
I had this epiphany about the fact that he had been answering the question, but he was answering it in engineering-ese, as if he was explaining it to a fellow engineer, as opposed to a bunch of regular community group people. And that kind of started my career as a translator between engineers and other people. I love engineering, it's like been a labor of love. But it was the beginning of me then seeing everywhere how people were miss-hearing each other, talking past each other. And that's how I evolved my whole series of egosystem lessons, which can take you know, an hour, I do an hour long training on it with examples of how people are, they're speaking different languages even when they're both in English, they hear what they expect to hear, rather than what you say. And they're just different things you need to do in order to be actually be heard or encourage other people to hear. But my role in the environmental world has been more social worker than anything else.
Faith Kearns
Yeah, I really appreciate that story. I would love to take that class. And it's super interesting also to just reflect on the fact that sometimes it can feel like we haven't accomplished that much. But then you look at things like, yes, we were dumping sewage into the bay, and that isn't happening anymore. That's huge. Right?
Felicia Marcus
Enormous, yeah.
Faith Kearns
I a ppreciate hearing that history and that story. So going from your first gigs into where you spent the last several years. So you spent about six years as the chair of the California State Water Resources Control Board. And though I think many of our listeners are likely familiar with the state board, I'm wondering if you could talk a little bit more specifically about the role of the chair and what you're most proud of accomplishing there, and maybe what you wish you'd been able to accomplish but didn't have the time to?
Felicia Marcus
Well, I think it's a very broad suite of responsibilities that got more broad during the time that I was the chair of the water board. It is a unique creature in the country in that from 50 something years ago, the water quality regulatory function in the state - meaning what sewage treatment plants could put out in the ocean or in surface waters, or industry, or ag or whatever it is - the water quality side, and the water rights regulation, which is about more quantity and use and priority and seniority, with an overlay of public trusts, fish protection, and protection of other uses, was put together in one entity. Folks felt that, particularly with California having a strong desire to protect resources of common value to all of us, as opposed to just looking at water as an extractive input to production of something, that having a group of people and a five member full time Board of regular people with varying expertise would bring more of that subjective judgment that was inherently a part of either the water quality side, or making judgments on what was reasonable or unreasonable.
Because we have such a strong waste and a reasonable use provision in our Constitution, it was really fairly brilliant, in addition to having a five member board, who did everything out in open public session, so it's really kind of cool. And then in this administration, or in the Brown administration, they also moved the drinking water program to us from the public health world. So you would have one stop shopping essentially, for small disadvantaged communities, but also others for dealing with wastewater and drinking water, getting financing, etc, it is just very much more efficient.
Particularly in an era where where we were trying to grow the use of water recycling, it also one stop shopping for permits. So we instantly became really on deck for all sorts of water issues that affect people. The chair role is interesting, because it's going to vary by administration. However, the governor's office actually wants to work with the chair. Sometimes you have administrations who are less enamored of regulatory agencies than others. But for me, it was particularly good to be there during the Brown administration, both with Jerry Brown and his long expertise in governance and his deeply thoughtful way of looking at it, and his very deep understanding also of the value of independent regulatory bodies who could sort of be the 800 pound gorilla, and have an independent role, though, you know, obviously, you always want to be part of a team and you're part of an administration, but it is set up so that we have four year terms where we can't be removed, except for malfeasance. It's not really an at will appointment.
So it was fun, because I was told to just do the job and probably was given more authority to do the chair job and drive things than at any time perhaps since the last time he was the governor and he had the best Chief of Staff any governor could ever have, Nancy McFadden, who also had a deep appreciation of the role of government to do good and a real bias for action versus talk. And in the water world, you know, sometimes it's more of a talking society than an action society, depending on the issue. And I have the scars to prove it. I was given the direction to make stuff happen, of course, then the worst drought in modern history happened. And we used it to accelerate a whole host of things across the board working as a team with other agencies. So you know, whether it was on conservation or recycling, I mean, you name it, it was sort of across the board, we were all working very, very hard.
So to get to the answer your question as the chair, my job technically was to be the leader of the board. The chair runs the meetings, sets the agenda, which is the only truly real power, but you end up being the main liaison of the governor's office to the legislature, both person and in the media, a lot of that is the way the governor's office wants to run something through force of personality. But you also end up being a team player with heads of other departments and part of the team if that's the way governor's office does it. Given the drought, where we had all of us together and Wade Crowfoot, now resources secretary, was at the time the staffer who ran the Drought Task Force during the drought, it really pulled us all together. So I'd add team member to the role of the chair.
There's a lot I'm proud of. I mean, I think how we rose to the occasion during the drought was pretty darn cool. I think the fact is that it was of necessity, but we also took advantage of it to advance water planning and implementation on a host of issues that had been dormant for many years on water rights. We, I think, took a thoughtful role. But we really doubled down on getting better information tools so we could lay a foundation for having a rational conversation about how to implement our water rights system. It was only in 2016 that the water board even had the ability to say that people who pull water out of our rivers and streams have to measure it. So there's just a whole bunch of those sorts of things where we laid the foundation, and did we solve everything? No, there's a long way to go. But I think the way we did the mandatory conservation rules, by sharing information and data with the public and respectfully using transparency and then going directly to the public, they totally responded and rose to the occasion saving 24% in short order.
I'm proud of what we did on recycling to help work a paradigm shift by putting a billion and a half dollars out in grants and loans. And by putting out general permits and rules to facilitate quicker permitting and an ability to envision what folks could do both for outdoor use, irrigation, indirect potable. This is done by the drinking water folks right before they came to us, but with support from us, and then the indirect potable rules for surface water augmentation. And now making progress on direct potable. I think you've seen a revolution on recycling whose time has finally come. And that's something near and dear to my heart. From the years when I actually ran the public works department in Los Angeles, we didn't get to that, it's strange that I went from being the lawyer suing the city to running it. But it was, you know, an early experience that wasn't completely weird, because by then we were in relationship with folks in the city, and they were happy to have me come and help be their translator.
A lot of what we did, I'm sure there's a longer list, I think our willingness and ability to deal with transparency and try to get stuff out in the public, I think was a really important thing. And the progress we've made on Bay Delta as much as Bay Delta also breaks my heart. But we actually put out very innovative rulemaking that recognized that while we have the authority to require flows, which are without question in adequate to support the ecosystem, that's one thing which we are absolutely correct on, we understood that fish need habitat, they need people to focus on managing it. And not necessarily in real time but in closer to real time than anything you could put in a regulation.
So we put out an olive branch to say, but if you give us a way of dealing with non flow and flow as a package and come together to manage a given water body, we're open to that for implementation, which I don't think had ever been done before, and we'll even make you give up less water to do it. That is one of the most innovative regulatory approaches I've seen. And ultimately, we were able to do at least the regulations on the San Joaquin part of the system. I'm hoping the state board will be able to put out rules for the Sacramento and the Delta proper because I think you need that regulatory backstop. Both for the integrity of making sure something happens but to be a backstop for voluntary agreements and incentive for them, but also a backstop to make sure people really comply with what they say they're going to do.
And so I think the work we did on Bay Delta was really at a higher level, where I'm heartbroken is that talking points totally swamped us. Some days, we did pretty well, others we didn't get as far as fast. And the voluntary agreements haven't gotten as far as fast as we had all hoped. Hope springs eternal. But I think my concern is that folks have seen the regulation and voluntary agreements as an either/or when in fact, they really work as a package, and they can only work as packet.
Faith Kearns
Yeah, thank you so much for that, that really is a list of accomplishments to be proud of. And it's nice to hear it all in one place, as well as getting a better understanding of the state board. So you know, as someone who has spent so much time in multiple sectors -you've worked in the nonprofit sector and you've worked in government and many other roles and now are sitting at a university - what do you see as some of the major challenges and solutions in California water today, as well as maybe some issues that you think we're maybe not paying enough attention to yet?
Felicia Marcus
Well, I think, you know, there are different sets of issues. So one is sort of intelligent water management generally. And in particular, in the urban arena, which is an arena that I'm working on as part of my Stanford work. But climate change, adaptation, and water in cities is just incredibly important. I think we've made tremendous progress there. And that's due to the leadership at the local level, and having some of us in government try and figure out how to aid and incentivize acceleration of that work versus thinking we have to control it from on high, which is a one size fits all that doesn't recognize every place is different.
In a lot of way, in the Bay Delta arena, I don't think we have a high enough appreciation of how much is at stake and what we're about to lose in terms of the complete collapse of an incredibly vibrant, and once far more vibrant, ecosystem and how close we are to not necessarily being like the Aral Sea that disappeared, but creating sort of more of a water desert or an ecosystem of truly just invasive species, rather than iconic salmon or that incredible magic of what happens in an ecosystem that we can't really pull apart species by species. I worry that we don't have enough of an appreciation for how important that is and how at risk it is. The general public really realizes how slow we've been as a state to really protect the heritage that really is theirs and belongs to all of them.
You know, at the same time, you see the heroic efforts on the Klamath to remove the dams, which if it happens will be one of the great, inspiring success stories of all time, I'm hoping someday the Delta is and we really do need to deal with it. I think in the water quality arena, we have this problem sometimes brought by a greater technical savvy and ability to identify contaminants at a smaller and smaller level so that we can look now at what we call contaminants of emerging concern, like endocrine disrupters, you know, what are the hormones and other things, caffeine and everything we excrete through our system. Same is true with PFAS as one of the scariest newer compounds that we're realizing is in deep contamination, places like DOT facilities that used flame retardants, but also it's just ubiquitous in Teflon pots and fabrics we use and everything. There's a huge amount of it coming out in just its diffuse way. So how are we going to deal with that in a way that's economical, you can deal with it through treatment. I mean, clearly, it's not rocket science, we can treat to get rid of all those things. It just costs energy and money. And so we need to find more energy sensitive ways of doing it.
But then it leads me to what I think the biggest challenge is, and one that I'm actually very optimistic about, which is the unmasking and the recognition of the vast number of Californians who don't have clean, safe, and affordable drinking water. No, I don't think we're alone. I just think we're among the few states who outdid themselves in terms of doing the reports and doing the data. And thank you UC Davis, for all the great work that Tom Harter and others have done in illuminating the extent to which Californians, particularly in agricultural regions, in rural communities, have been relying in whole or in part on nitrate contaminated groundwater, which is the byproduct of a socially productive enterprise, which is growing food and fiber. It's not like a Superfund site. It's like whoops, you know, here's an externality that we have to figure out how to deal with it. But fortunately, only a small percentage of the water that's used is drinking water, particularly in agricultural regions. And so the right answer is to put less in, which is something we did some good work on in the Irrigated Lands Program.
But to just get drinking water to people, I mean, it's a small fraction, it's actually not that much money from a societal standpoint. And I just think that the alliance that we develop that, you know, made me think of the disadvantaged community activists, when your Community Water Center, Leadership Council, Clean Water Action, you know, the nonprofit's like Self Help Enterprises who help protect communites are the best activists I've seen since Heal the Bay, just gonna say, because they knew earlier than we did, that you pound the table to get attention. And when you sit and you ask questions, and then you figure out why they can't do the thing they want to do, and then you give them the tools, which is exactly what they did. They went to the legislature and the governor and they got ability to order consolidations, they've gotten funding, we've got big dollars and Prop 1, it all flowed through there, getting the Human Right to Water act passed, the first one in the country, had no teeth but it set a policy that said we all had to pay attention to it.
We paid attention to it and had a huge laundry list of prioritizing our enforcement, all of our tools. And the Brown administration signed that law and then supported us all in getting those tools. And that is a huge turnaround. I've never seen a governor care that much about it. And I'm delighted that Governor Newsom has picked up that baton and also has it as his top priority, even getting funding to subsidize operation maintenance. So very long answer, but we still have a long way to go to make good on the Human Right to Water. But I do think we're on the path there. And that's the space to watch, not just in rural California, but in urban centers where you have these little agencies that whether urban or rural will never have the managerial technical or financial capacity to treat for this witch's brew of chemicals that are either naturally occurring or placed there either through malfeasance or evil, or just as the legitimate byproduct of a socially productive good. So we've got some big problems there. But they are problems we can rise to if attention is kept on.
Faith Kearns
So it's interesting, because I think most of your examples are so positive. But you've also said that you feel like right now at least the water world in California is more divided than you feel like you've seen in a long time. And so I'm just wondering if you could talk a little bit about why you think that is, and maybe what kinds of approaches or models you turn to when you think about bridging that divide, as somebody who's well known for trying to do that.
Felicia Marcus
Yeah, it's really quite interesting, particularly since you know, you do the role, you're assigned, either by the boss or the team, or just the nature of your position. And so as the regulator, the state board, my job was largely to be the 800 pound gorilla. Now, I'm a friendlier 800 pound gorilla than most. And we did a lot of things with this, on the one hand, on the other hand approach, whether it was a sustainable groundwater management, Irrigated Lands, or the way we approach the Delta, which is to say, look, we got to get this done, here's the bar. But if you come up with a different way to do it, you locally, or you the people will accept that because local conditions vary. And if people buy in, it's going to happen further faster than if somebody in a cubicle in Sacramento tries to tell somebody what to do.
You can tell that I was in local government and really annoyed by both the state and federal government mindset that they were smarter somehow, because they were at the state or federal level, which is just not true. You're further away from the real world. And in the real world, it's hard to do this stuff, you can see that was my growing up, you know, a humbling experience. And so my view is, you need to defer to the locals, if they do it, great, and then come down hard if they don't. You know, you set the bar, and then you have the backstop it, to me that just philosophically works and lives in the federal government. It's a federal model that works incredibly well to get states to step up. It’s how we did the Bay Delta accord in the 90s. How we did these clean air plants in the 90s. I had to be the 800 pound gorilla giving the state the political cover, I think.
The problem I think we have today, and I'm not going to be too political about it, but there's an element of politics to it. And I'm old enough to have seen them. This is in the Bay Delta arena. As opposed to being ubiquitous, you kind of have largely the same set of players, although people are starting to age out, which is good, because I liked a lot of these people individually, and I'm still friends with them, but together we just weren't able to get it together without somebody being willing to be a tough backstop or have a litigation or something that forces action. And I think at the moment because we've had an administration change and is no disrespect to a new governor, but new governors always come in new and this stuff is complicated. It happened with Gray Davis at first too. And having an administration in Washington that is so clearly erring on the side of rhetoric and deeds on water removed from the environment.
It’s sound bite by sound bite, in some ways even more than inaction, it just creates an atmosphere in which stepping up and putting the water out that needs to be put out to really get a real response is very difficult for people. There is an illusion that you can win at all. And I have seen that every time an administration changed. And I've seen it on other issues at the local level, too, when an administration changes, folks who work close to a deal will see if they can get a better deal elsewhere. And I think that the current political climate has enabled delay, let's just say, and people coming together because there's an illusion they can win. And at the same time, from the environmental community side, you have a real terror that you're going to lose all these species. Which makes it much harder to be gracious and open to a deal because all of this stuff has taken decades longer than it should have, either to do regulations or to be willing to do what it takes to force a deal through putting something on the table.
I may have a little bit of optimism there. But it's tempered by having seen this seesaw happen so many times. I mean, that's just a blunt way of putting it. I mean, a lot of people who are players in this would absolutely disagree with me about this from the bottom of their heart. And I wouldn't even doubt their sincerity. I just think at a bigger scale it is just what happens where the warrior thing comes in at negotiations. expecting people to give things up and give it away is silly. You have to create the conditions under which you construct a deal that they kind of have to take because it meets their needs. But you can't sit around and wait for them to just offer up water either from farming or for fish or from an urban sector without there being sort of a forcing mechanism that they can at the very least hide behind back at home.