This week the Assembly will consider Senate Bill 1 by Senate Pro Tem Toni Atkins.
SB 1 proposes dangerous changes to how the state implements the Endangered Species Act (ESA) and will have devastating impacts on how water is managed in California.
The bill seeks to preserve environmental regulations against perceived rollbacks by the Trump Administration by empowering state agencies to immediately adopt the “baseline” standard in place before January 19, 2017 (the day before President Trump was inaugurated).
As currently written, SB 1 would lock in the existing biological opinions that determine how much water must flow out of the Delta to protect native fish species. This directly influences how much water is available to ALL water users south of the Delta.
The State and Federal agencies are currently in the process of updating the biological opinions, which will result in lower flows and more water for communities and agriculture. But, by locking in the existing biological opinions, SB 1 prohibits State from using the best available science to manage how water moves through the Delta.
Recent amendments do not go far enough to address the ESA provisions.
California Citrus Mutual and many other agricultural and business-sector groups have proposed constructive amendments to address these concerns. The Pro Tem’s office, however, did not make substantive changes to the bill before it was passed out of the Assembly Appropriations Committee on Friday despite pressure from the Governor’s Office.
The Legislature will adjourn next Friday and it is imperative that SB 1 be amended THIS WEEK.
We are calling on our Assembly Members and Senators to urge the Senate Pro Tem to accept amendments to the ESA section.
Please click on the link below to send a letter to your representatives asking them to support amendments to the ESA section in SB 1.
The California Water Alliance announced today California Senate Bill 1, or SB1, by Senator Toni Atkins (D-San Diego), advanced from the California Assembly Appropriations Committee. SB 1 will now be considered on the California Assembly floor before the Legislature adjourns on September 13th.
Assemblyman Frank Bigelow (R-O’Neals), Vice-Chair of the Assembly Appropriations Committee, shared with the California Water Alliance, “I am disappointed that SB1 was released off suspense file with amendments that make it much worse for farming and California as a whole.”
SB1 effectively declares that California would adhere to laws governing clean air, water, endangered species and labor that were in place in January 2017, before the beginning of the Trump Administration.
“SB 1 is bad for farmworkers, farmers, and communities throughout the state of California,” said William Bourdeau, Chairman of the California Water Alliance. “Our environmental laws and regulations should be defined by current, sound science, not petty politics.”
SB1 would freeze the existing federal biological opinions. Future permits would be subject to outdated science and ineffective federal baseline measures, thus permanently, constraining the coordinated operations of the Central Valley Project and the ç.
Tulare County’s top ten crops [crop value] in 2015 were:
Cattle & Calves
Oranges- Navels & Valencias
Almonds Meats & Hulls
Tangerines – Fresh
Corn – Grain & Silage
Silage – Small Grain
Kinoshita explained, “Dairy is our number one industry here. Our milk production was off a little bit. We have fewer dairies in business now because of the low milk prices. Anytime your fresh market milk is off, that’s going to affect our overall value. A good 2/3 of that billion-dollar decrease came from the dairy industry. The price was low the entire year, as opposed to the year before.”
Thus far, the reported 2015 county crop reports in the Central Valley are down this year. “Fresno County, for instance, was down 6.5% off its record $7 billion in 2014,” Kinoshita said.
“It has a lot to do with low water deliveries in Fresno and Tulare Counties,” she continued. “The smaller the water deliveries, the more efficient those growers have to be with that water. Anytime you’re pumping water out of the ground, it’s terribly expensive,” she noted.
“Some of our growers have had to decide, ‘All right, I’ve got this much water; I’m going to keep those blocks alive and I’m going to push an older block that isn’t producing as well.’ The returns aren’t as good as some of the newer plantings,” said Kinoshita.
Despite all of that, Kinoshita said agriculture does sit at the head of the table in Tulare County. “Yes, and we need a successful Ag industry to thrive here,” she said.
Tricia Stever Blattler, executive director of the Tulare County Farm Bureau, noted the crop report demonstrates the strength of the agricultural industry. “I think every year when this crop report comes out, it is always a testament to the resiliency of this industry. This industry takes hard knocks, gets knocked down, then steps right back up to the plate and keeps swinging,” Blattler said. “The agricultural sector has a lot of outside challenges that impact the number that we see reported every year.”
Blattler acknowledged the crop value numbers do not reflect net revenue for growers. “It’s always really important for our listeners to know that the crop value is a gross revenue number. When our Ag Commissioner steps to the microphone and speaks to our Board of Supervisors about this report each year, she’s reflecting values that are attributed to all of the gross revenue, and it’s not only the field value,” Blattler said.
“That gross number reported each year also represents our packing houses, our milk processing facilities—the creameries, the butter plants—the packing sheds, all those other parts of our industry that [create] value in our industry,” said Blattler.
Blattler noted up or down, it’s all about the resiliency of farmers. “The industry has its years that are really blockbuster and it has its years when it falls back and we see a reduction acreage. We see reductions in surface water deliveries. The drought is still certainly playing a significant role in the numbers we’re seeing,” she explained.
With regard to surface water, Tulare County is in a bit of a unique position. “As an Eastside county, some of our water deliveries are not as subject to the situation that the Westside is in. In the same sense, we have some significant cutbacks that have been attributed to the San Joaquin River’s restoration and the biological opinions in the Delta—all have had an impact on the Central San Joaquin Valley [water] deliveries regardless of whether you’re Eastside or Westside.
“Also, as the exchange contractors either take greater deliveries of water or give up water, that also impacts the amount available to Eastside growers here in Tulare County,” she said.
In summary, 2015 Tulare Crop Report covers more than 120 different commodities, 45 of which have a gross value in excess of $1 million. Although individual commodities may experience difficulties from year to year, Tulare County continues to produce high quality crops that provide food and fiber to more than 90 countries worldwide.
Jim Costa, Congressman for the 16th Congressional District of California that covers all of Merced County and parts of Fresno and Madera Counties and includes vast areas of agricultural land, is not happy with the water situation in California. Costa stated, “To be sure, we are still in a water crisis even though we have had some good [wet] months.”
“Sadly those good months have seen too much of that water going out to sea—as opposed to getting into the San Luis Reservoir and providing water for our Valley—whether for the East side or the Westside. It is a fight that I have been engaged in for years, but most recently, I have been trying to ensure that we are pumping at the maximum levels even under the flawed biological opinions that we are having to contend with.”
Costa explained that while the pumps have been turned up over the past month, sometimes to the maximum level, “the San Luis Reservoir is only 51% full, and now we are are still looking at a 5 percent water allocation for Federal water users. This has been avoidable, and it is unconscionable and immoral. Let me repeat that, it has been avoidable, and it is immoral and unconscionable that we, in fact, are in this predicament. It is largely because we have failed to take advantage of the El Niño months of December and January.”
Assessing our winter water losses,Costa remarked, “Since January 1st, we estimate that we have lost over 440,000 acre-feet of water. This freshwater—440,000 acre-feet—would make a big difference to our Valley, which has been water-starved from a combination of 4 years of drought, plus the flawed biological operations of the Federal and State Water Projects. So, we have to fix this broken water system, bottom line.”
Justification for Reclamation’s 5 Percent Allocation
Following the stunning announcement by the Bureau of Reclamation (USBR) on Friday, April 1, 2016, of a 5 percent water allocation for Federal water users south of the Delta, Patrick Cavanaugh, deputy editor with California Ag Today interviewed Louis Moore, deputy public affairs officer with the Bureau of Reclamation (Reclamation) Mid-Pacific Region based in Sacramento regarding justification for the low allocation for the Central Valley during this El Niño year.
Cavanaugh: We are all stunned in Central California with that 5 percent water allocation to Central Valley Project water users. With so much hydrology in terms of rain and snow this winter, it seems impossible that farmers and cities could only expect 5 percent!
Moore: Yes, understood. I will try to explain what our logic is behind the 5 percent allocation.
Cavanaugh: Yes, I would like just one reason for the 5 percent. We cannot imagine why so much water is going to waste.
Moore: So basically when we looked at the hydrologic conditions in preparation to make the allocation announcement, we found that regionally, water has fallen differently in the various basins. There was substantially more rain and snow in the mountains in the Oroville and Shasta Dam areas that caused those reservoirs to increase storage quite rapidly. Over at the New Melones Reservoir, which provides water to the south, the storm systems did not materialize and did not produce large sums of runoff; therefore the reservoir storage is low.
Cavanaugh: But the snow that could fill New Melones has not yet melted. And, as you said, there is a lot of water in northern California, and there is a system to get it southward to farms and cities.
Moore: So this is the initial allocation that is out today. We are hopeful that conditions will improve; and if they do so, we can make an adjustment to what the allocation is.
Cavanaugh: You did not mention San Luis Reservoir, a major reservoir jointly run by the state and federal governments that could have had more water pumped into it during the recent high flows, particularly given the flood releases from northern California.
Moore: Water is being pumped into San Luis, and it is for a combination of reasons. Sometimes the natural runoff causes different flows into the systems, but we have to regulate the water that goes through the Delta. San Luis is a shared Federal and State reservoir with legal criteria under which we operate. So we have to be very careful about what waters we can push through the Delta. But we were still providing water to that system.
Cavanaugh: Well, Louis, clearly more water should have pumped into the San Luis Reservoir. On April 2, it was only 52 percent full and, given the flood releases, it should have been more. Californians on farms and cities south of the Delta are frustrated. They assert that far too much water is wastefully flowing out to the ocean—way more than necessary for the protection of species and the prevention of salt-water intrusion. Please explain why so much fresh water, nearly 800,000 acre-feet have flowed out to sea.
Moore: We operate to meet endangered species requirements. We operated to meet water delivery requirements through these various systems. These are federal/state requirements and biological opinion that we are operating to. We are trying to make sure we are following the law, so there are combinations of things where Reclamation works with its partners to determine where and how to get the water where it needs to be.
Cavanaugh: Inflows into the Delta were as high as 300,000 acre-feet of water per day, and only a fraction of that has been moved into San Luis with a capacity of 2 million acre-feet. We understand why San Luis is not filled during drought years; but in an El Niño year like this, it’s confounding how Reclamation could justify an initial 5 percent allocation. It defies any logic, all the water, all the flood releases and the 95 percent on-average snow in the Sierras. Again, how can it possibly be justified?
Moore: What I can say is there is absolute consideration and we understand the impact this has on our customers. One of the reasons we waited until April 1 to make this allocation announcement is because we have been hopeful. We have been looking at the storage, snow and runoff to see if conditions improved enough, so we could actually increase what we thought was going to be a worse allocation.
Cavanaugh: Well, it’s laughable—only 5 percent for San Luis, with all the water in the system from the El Niño year! You’re still not answering the question. None of this makes sense to anyone who is a critical thinker. Can you please explain, other than preventing salt-water intrusion and protecting species, why so much more water—over the top—was sent out?
Moore: We are stillcoming out of the fourth year of dry conditions and that’s not news for folks. The dry conditions that we came through up until the fall of 2015 really impacted our ability to move water downstream into San Luis, which is the same water that can be provided to folks south of the Delta.
We completely understand that, but we are talking about timing of the water supply that we received. Of the additional 4.4 million acre-feet of water that we received over the past several months, 2 million-acre feet occurred in March, which was late [for purposes of allocation analyses]. So we are just getting the sum of this water into our system. And we are still hopeful that [these late hydrology] conditions will improve and we can provide additional water.
Cavanaugh: We know that Fresno received 135 percent of normal rainfall this year; it was wet throughout the area. Five percent was stunning to all of us. We know that farmers will never see 100 percent any longer. And possibly we will never see 80 percent any longer. I mean we could have record flooding throughout the state and farmers may not see a 50 percent allocation—even if the Delta Smelt were proven, unfortunately, to be extinct.
Moore: Yeah, I do hear you. But there is a lot of work that goes into developing water deliveries and a lot of coordination as well. I am not blaming it on the laws, but when we sit down at the table with all the interests for water, it literally becomes a discussion on how to distribute the water and meet all that demand. Now we come to these agreements to meet the legal obligations, to meet the contractual obligations and to protect the environment. So this requires a lot of effort.
Cavanaugh: Louis, I do not get what you are saying. In fact, I disagree with what you are saying. The family farming interest got a zero allocation two years in a row, but the environment still got all the water they wanted. So Reclamation is not sitting down with all the interests for water. The environment gets 100 percent of what they need while everyone else get far less—including zero two years in a row—and now only 5 percent.
Moore: That’s part of the legal requirement that we have talked about. It’s absolutely one of entities at the table that has to be managed.
Cavanaugh: Does the Bureau of Reclamation understand that all this water being used for the environment has not really helped the protected species in the Delta? The species continue to decline despite farmers going without water, fallowing land, and laying off workers, and in spite of devastating communities and severely hurting the economy in the Central Valley.
Moore: You know, I hear you. This is a discussion that I absolutely understand. It’s going to take a lot of folks coming to the table and a lot of discussion to change policy, to change the law and to introduce new ideas on how this works. Those are the things that have to happen
Cavanaugh: Can you help us make this happen?
Moore: You know, this is an ongoing discussion, I assure you. You probably see all the legislative reporting that’s done about water management. It is these discussions that somehow need to culminate into the change that you are mentioning.
Washington, D.C.; January 12, 2015: The U.S. Supreme Court announced TODAY that it will not hear Pacific Legal Foundation’s (PLF’s) challenge to the Delta smelt “biological opinion,” a harsh and unjustified Endangered Species Act (ESA) regulation that has led to dramatic water cutbacks for tens of millions of people — including thousands of farms and businesses — in Central and Southern California.
In appealing the case — Stewart & Jasper Orchards v. Jewell — to the Supreme Court, PLF represented San Joaquin Valley farmers who grow almonds, walnuts, and pistachios, and who have been hit hard by the water cutbacks mandated by the Delta smelt “biop.” PLF represents these clients — as with all PLF clients — without charge.
Statement by PLF Director of Litigation James S. Burling
“We are disappointed that the Court declined to review the federal government’s damaging and unjustified Delta smelt regulations,” said James S. Burling, PLF’s Director of Litigation. “These regulations have harmed farmers and farm workers in the Central Valley, along with tens of millions of Southern Californians, by diverting vast quantities of water away from human use and out to the Pacific Ocean — all to try to improve the habitat of the Delta smelt, a three-inch fish on the Endangered Species Act list. As a result, hundreds of thousands of acres of once-productive farmland have been idled, farm workers have lost their jobs, and farmers are losing their farms. Water users in Southern California have seen rates rise significantly. And the impacts of the state’s record-level drought have been much worse.
“The feds broke their own rules when they concocted these destructive Endangered Species Act regulations, because they ignored the punishing economic impact,” Burling continued. “And the Ninth Circuit was wrong to uphold the water cutbacks, because it relied on an old interpretation of the ESA that gave short shrift to the interests of human beings. If that anti-human interpretation — in the 1978 Supreme Court case of TVA v. Hill — was ever correct, it is obsolete now, after subsequent changes in the ESA. It is high time to formally reverse that ruling.”
“Unfortunately, the High Court will not hear the challenge to the Delta smelt water cutoffs,” Burling said. “But Pacific Legal Foundation is not giving up. We will return again and again to ask the Court to review — and reverse — the perverse and outmoded TVA precedent that is being used to justify policies that are literally anti-human. The protection of imperiled species is important, but so is the protection of jobs and the economy. PLF will continue to fight for that principle until it is fully embraced by the courts and fully implemented by the bureaucracy.”
Listed as “threatened” under the ESA, the smelt is a three-inch fish in the Sacramento-San Joaquin Delta. In a controversial strategy to help the smelt, federal regulations under the 2008 “biop” sent vast quantities of water to the ocean — instead of storing it behind dams or pumping south for cities, towns, and farms. However, the smelt hasn’t improved — but the economy has suffered, and the effects of the drought have been made worse.
PLF’s legal challenge was based on the fact that the U.S. Fish and Wildlife Service violated its own regulations in drafting the Delta smelt biop. The agency ignored the potential harms — even though it was supposed to take economic considerations into account. “The economic impacts have been devastating,” noted Burling. “Pumping restrictions have fallowed hundreds of thousands of acres of farmland, and Southern Californians have seen water rates rise by as much as 20 percent. And once the drought set in, the impacts were more severe because of the Delta smelt regulations. By sending vast amounts of water directly to the ocean, the smelt regulations meant there was less water saved in reservoirs for the dry times.”
PLF’s case asked the Supreme Court to help drought-stricken California by rejecting the Delta smelt biop — and reversing the “anti-human” TVA v. Hill
In 2010, then-U.S. District Court Judge Oliver W. Wanger, of Fresno, struck down the Delta smelt biop, holding that it had been drafted “arbitrarily and capriciously,” with “sloppy science and uni-directional prescriptions that ignore California’s water needs.”
However, this past March, a divided Ninth Circuit panel reversed Wanger’s order that the biop be rewritten. Although the Ninth Circuit acknowledged that the biop is a “chaotic document,” poorly reasoned and written, the court upheld it by citing TVA v. Hill, a controversial 1978 Supreme Court ruling.
TVA v. Hill interpreted the ESA as giving a blank check for onerous species-protection regulations, “whatever the cost” for the interests of human beings. “TVA was always an extreme reading of the ESA,” said Burling. “But it is clearly obsolete now. After TVA, Congress made it crystal clear that regulators must take a balanced approach to ESA regulations, by requiring that any species-protection rules to restrict government projects must be ‘reasonable and prudent.’ The Supreme Court needs to reconsider TVA’s outdated perspective. Unfortunately, the justices declined to use the Delta smelt case as an opportunity to do so. But PLF will continue to litigate, on various fronts, until TVA is reconsidered, and the courts insist on balance and common sense in ESA regulations.”
PLF represents Central Valley farmers
In challenging the Delta smelt biop, PLF attorneys represented three farms in California’s San Joaquin Valley that have been seriously affected, since 2008, by the water cutbacks: Stewart & Jasper Orchards (an almond and walnut farm); Arroyo Farms (an almond farm); and King Pistachio Grove (a pistachio farm). PLF represents the clients in this case — as in all our cases — free of charge.
The case is Stewart & Jasper Orchards v. Jewell. PLF’s petition for certiorari, a video, and a podcast are available at: www.pacificlegal.org.
About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation (www.pacificlegal.org) is a nonprofit public interest watchdog organization that litigates for limited government, property rights, and a balanced approach to environmental regulation, in courts across the country. PLF represents all clients free of charge.
PLF statement on 9th Circuit Upholding Delta Smelt Biological Opinion
Last Week, a panel of the Ninth Circuit largely upheld the federal government’s 2008 “biological opinion” for the delta smelt, a regulation under the Endangered Species Act has that triggered draconian restrictions on water deliveries from the federal and state water projects to the San Joaquin Valley and Southern California.
Pacific Legal Foundation (PLF) attorneys represent some of the farmers in the case who are challenging the biological opinion as an abuse of federal power based on questionable science and shoddy regulatory procedures.
Damien Schiff, a principal attorney with PLF who represents farmers in the case, issued this statement today, in response to the Ninth Circuit’s ruling:
“The Ninth Circuit has done a reverse rain dance for California, practically guaranteeing that the impacts of our current drought will be more devastating,” said PLF Principal Attorney Damien Schiff.
“The ruling gives judicial blessing to regulations that impose real punishment on people with only speculative benefits for a declining fish species. Under these draconian regulations, water is withheld from farms, businesses and communities from the Central Valley to San Diego based on sloppy science and ideological agendas.
“There’s a drought of common sense in the bureaucracies that impose these regulations – and in the perverselegalprecedents that lead courts to uphold them. In one notorious precedent, TVA v. Hill, the U.S. Supreme Court said the Endangered Species Act gives absolute priority to species over everything else, including the general welfare of the human community.
“We must all hope that California’s water crisis – made worse today by the Ninth Circuit – can prod the U.S. Supreme Court to reconsider its past decisions that are leaving us so parched.
“Indeed, the one hopeful aspect of today’s ruling is there’s a possibility the smelt case could get to the Supreme Court. There, it might result in a decision that turns the tide of environmental law away from imbalance and zealotry, and back toward sanity.”