California Farm Bureau Federation President Decries Water Diversion Plan

Science Shows Increased Water Flow Doesn’t Save Fish, Paul Wenger Says

By Patrick Cavanaugh, Farm News Director

California Ag Today is continuing our coverage of the State Water Resources Control Board’s plan to take 40 percent of the water from the Stanislaus, Tuolumne and Merced Rivers to feed into the San Joaquin River to increase flows for salmon. There is major pushback by affected farmers. We spoke with Paul Wenger, president of the California Farm Bureau Federation, at their 98th annual meeting in Monterey this week. He farms almonds and walnuts in that area, and he and his family would be seriously impacted; they would be forced into more groundwater pumping.

president of the California Farm Bureau Federation
Paul Wenger, President of the California Farm Bureau Federation.

“It just seems the same old adage,” Wenger said. “If we put more water in the rivers, it’s going to be better for the fish. We know that it hasn’t worked with biological opinions. We know it hasn’t worked in the Sacramento, it hasn’t worked in the delta. We need to go after some of these other predatory species: the striped bass. They’re an introduced species.”

Wenger said there’s a lot of data saying that just won’t work. “The studies have been done, the science is out there. Just to say that we’re going to keep adding water to the problem [and] we’re going to get a different result is ridiculous. We have a finite resource of water today. We have growing needs for it for urban [and] foreign environmental flows, but also for farming and manufacturing.”

Wenger believes that the Water Board always makes rules quickly are not invested in the outcome.

“As I tell the folks, you come up with the ideas, but you’re not invested. You’re investing my future. You’re investing my resources, and other farmers’, but when we have these environmental groups say, ‘This is a solution.’ Why don’t you put your money up?”

 

 

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Water Board’s Point of View on Increasing San Joaquin River Flows, Part 1

Les Grober Explains Increasing San Joaquin River Flows

This is part 1 of a 2-part series.

By Patrick Cavanaugh, Farm News Director

 

California Ag Today conducted an extensive interview with Les Grober, assistant deputy director, State Water Resources Control Board (SWRCB, Water Board) Division of Water Rights, regarding the Water Board’s proposal to adjust the flow objectives on the San Joaquin River to protect fish and wildlife. The plan, specifically, is to divert 40 percent of water flows from the Stanislaus, Tuolumne and Merced Rivers that flow into the lower San Joaquin River. 



Hearing on the Potential Changes to the Water Quality Control Plan for the San Francisco Bay-Sacramento/San Joaquin Delta Estuary: San Joaquin River Flows and Southern Delta Water Quality and on the Adequacy of the Supporting Recirculated Draft Substitute Environmental Document.

Hearing begins at 9:00 a.m. on the following dates:

November 29, 2016   Joe Serna Jr. CalEPA Headquarters Building, Byron Sher Auditorium, 1001 I Street, 2nd Floor, Sacramento, CA 95814

December 16, 2016  Stockton Memorial Civic Auditorium, Main Hall, 525 N. Center Street, Stockton, CA 95202

December 19, 2016  Multicultural Arts Center, 645 W. Main Street, Merced, CA 95340

December 20, 2016  Modesto Centre Plaza, Tuolumne River Room, 1000 K Street, Modesto, CA 95354

January 3, 2017  Joe Serna Jr. CalEPA Headquarters Building, Coastal Hearing Room, 1001 I Street, 2nd Floor, Sacramento, CA 95814



California Ag Today: At a recent public workshop in Sacramento, Les Grober, you cited some statistics that show the Water Board really has not done a lot—or much of anything particularly—in the San Joaquin River in terms of helping salmon. Is this accurate?

Grober: Yes. I did not discuss specifically the flow benefits or the fish benefits, but I did explain there are times between February and June when flows are critical for salmon. During the months of March and April, especially, less than 10 percent of the water flows than would be there normally if you were not storing it or diverting it.

Water Board proposes water diversions for fish from three San Joaquin River tributaries: Stanislaus, Tuolumne, and Merced Rivers
Water Board proposes water diversions for fish from three San Joaquin River tributaries: Stanislaus, Tuolumne, and Merced Rivers (Map Source: WorthYourFight.org)

California Ag Today: So the Water Board proposes taking 40 percent from the rivers to help the salmon?

Grober: I posed the question, “If there is a species that has adapted to 100 percent flow, how likely would it be that it could be successful with less than 10 percent of that?” If you look at the overall statistics between 1984 and 2009 for the three tributaries (Stanislaus, Tuolumne and Merced Rivers), the average flow during the February through June period was 40 percent on the Stanislaus, 21 percent on the Tuolumne, and 26 percent on the Merced.

California Ag Today: So you need water from all three tributaries to accomplish the objective?

Grober: Currently, there are flow objectives only for the San Joaquin River at Vernalis where the San Joaquin River flows into the Delta. The current objective skews the flows so they are coming from just the Stanislaus River, which has problems achieving those flows at all times because it is all coming from one location. It also does not achieve the fish protection goals because it’s all coming from the same location.

So, based on the core science, we are proposing to establish objectives on the three salmon-bearing tributaries to the San Joaquin River. This is about reasonably protecting fish and wildlife in the San Joaquin River. 

California Ag Today: So the Water Board is not trying to protect the salmon at any cost, which is the mandate from the Endangered Species Act?

Grober: The proposal is not establishing flows that provide absolute protection. We are establishing flows to reasonably protect species—in this casefish and wildlife.

California Ag Today: The Water Board earlier proposed the need for 60 percent to be unimpaired flows?

Grober: The science developed over the years has shown that if you were not going to consider any other uses of water, like agriculture, drinking water or anything else, the number you would need is 60 percent of unimpaired flow.

California Ag Today: Due to agriculture pushback, the new goal is 40 percent?

Grober: That is why what we are doing now is very hard. We’re doing the balancing that says we have the science that shows the need for increased flows. We have all the information that shows how important the current uses of water are now for agriculture and municipal supply and hydropower. so how do you come up with a balance that takes into account all of that information?

California Ag Today: We have been following closely the extraordinarily increased flows through the Delta and to the Pacific Ocean, which seemed to be No. 1, a total waste of freshwater, and No. 2, at least a few acre-feet could have been pumped into the San Luis Reservoir for cities and farmers.

Grober: It would be interesting to see the numbers that you are citing because, during this recent drought, in particular, there have been greatly reduced flows throughout the system—not in any way—by any stretch—increased flows. In fact, the Water Board approved emergency change petitions not to increase flows, but to do just the opposite.

In general, they have relaxed or shifted downward required flows so there would be more water available to be smartly used for multiple purposes, not just for fish and wildlife, but also to get more water for public interest uses. 

California Ag Today: We know that flood control pulse flows are difficult to capture, but it seems that some of that great volume of water could be pumped southward.

Grober: Many times, people will fail to notice or acknowledge that during periods of high rainfall and high flow, a lot of water goes out because it cannot be captured. So very large quantities of water go out because of flood flows and high flows.

This is not to say that there are no constraints, at times, on what can be diverted or exported to protect fish and wildlife due to objectives, the State Boards, the Water Quality Control Plan, or biological opinions. But much of that water that people look at and say, ‘Why is that all going out?’ — a lot of that is flood flows that cannot be captured. So it ends up looking like a very big number, but it is not a number that can be captured because, as you can imagine during wet years and high flow times, it is almost too much. People can’t capture it. 

California Ag Today: So there is not even an effort to export that water to those who need it — farmers and communities?

Grober: Like I said, there have been constraints on export pumping. But those constraints are intended to provide some protections for fish and wildlife, while at the same time they are opportunities for getting water for other uses. So I see a lot of overstatements.

California Ag Today:  Again, when there are pulse flows, why can’t we collect them and exported them? Why can’t we just turn up the pumps to capture some of the extra water moving through the Delta to export it to farms and cities?

Grober: There are constraints on what are called reverse flows in Old and Middle Rivers (OMR), which is a critical area of Smelt risk. This is part of the biological opinions intended to protect smelt and salmon at critical times that happen to coincide occasionally with higher flow events.

That is one of those times when it’s kind of striking a balance as well. The flows are still not optimal for the protection of the species, but certainly, from the water supply perspective, they are not seen as optimal for the water supply. That makes all of this so very hard. How do you strike that balance?

California Ag Today: You talk about striking a balance. It seems that the environmental side gets nearly 100 percent of what they need and Ag gets nearly zero. 

Grober: Where is Ag getting zero?

California A Today: There are Federal Districts on Fresno County’s Westside that for several years have received zero water allocation. This past season, they were promised 5 percent, but they were not able to get the entire amount.

Grober: If I may, it is clear that you have a certain view on this.

California Ag Today: Absolutely. It just does not seem that agriculture has a seat at the table.  

We’ll continue Part Two of this series tomorrow. We’ll discuss, among other things, that if the proposal goes through, farmers would be forced to use more groundwater.

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Farm Water Coalition Shames State Water Resources     

Farm Water Coalition Shames SWRCB Over Proposal 

By Patrick Cavanaugh, Farm News Director

 

The California Farm Water Coalition (Coalition) was formed in 1989 to increase public awareness of agriculture’s efficient use of water and to promote the industry’s environmental sensitivity regarding water.

Mike Wade, executive director of the Sacramento-based Coalition, has major concerns about the State Water Resources Control Board (SWRCB)‘s proposal of taking 40% of the water from many irrigation districts along three rivers that flow into the San Joaquin River to protect an endangered fish. The SWRCB proposes to divert water from the Stanislaus, Tuolumne and Merced Rivers to increase flows in the Sacramento Delta.

Mike Wade, executive director, California Farm Water Coalition
Mike Wade, executive director, California Farm Water Coalition

Wade explained, “The Endangered Species Act (ESA) is important for the United States, and we want to see it work. However, it’s not working. It’s not helping fish, and it’s hurting communities.” But Wade wants to revise the ESA “in how we deal with some of the species management issues.”

Wade said SWRCB is doubling down on the same tired, old strategy that is not going to work any more now than it has in the past. “What happened in the past isn’t helping salmon. What’s happened in the past isn’t helping the delta smelt. You’d think someone would get a clue that maybe other things are in play, there are other factors that need to be addressed.”

The State Water Resources Control Board estimated the proposed 40% diversion of river flow would decrease agricultural economic output by 64 million or 2.5% of the baseline average for the region.

Ag officials warn that if the proposal goes through it would force growers in the area to use more groundwater—which they have largely avoided because the Turlock Irrigation District and Oakdale Irrigation District historically met the irrigation need of local farms.

This is the only agricultural area in the Central Valley that does not have critical overdraft problems. If the state takes away 40% of water available to growers, it could lead to a critical overdraft issue there as well.

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Breaking News: Contracted Contractual Water Deliveries Could Plummet

Breaking News: 

Promised Water Deliveries Could Plummet

Delta Smelt Among Many Reasons for Pumping Constraints

By Emily McKay Johnson, Associate Editor

Farmers in the federal water districts of Fresno and Kings Counties were granted only five percent of their contracted water this year; yet they are at risk of getting even less due to pumping constraints. Jason Peltier, executive director of the San Luis & Delta-Mendota Water Authority, a Los Banos-based federal water district explained, “The original forecast had full pumping in June, July, August, and September.

“Because of the temperature constraints and because of the water quality standards,” Peltier stated, “we’ve been operating only one or two pumps. There’s just not enough water flowing south to meet the U.S. Bureau of Reclamation’s (Reclamation) obligations to the exchange contractors, the [wildlife] refuges and the urban agencies, along with the 5% allocation to the ag services contractors,” he noted.

SLDMWAPeltier is concerned for those in the Central Valley, and water agencies are working frantically to find answers. “We’re working on it,” Peltier affirmed. “We’ve got a lot of engineers and operators preparing spreadsheets and analyzing both the variables and what changes could be made to avoid lower water levels at San Luis Reservoir.”

Commenting on this year’s deliveries, Peltier stated, “No doubt we’re in an unprecedented operating environment. Here we are, eight months into the water year, and we just got a temperature plan for Lake Shasta—that is driving the whole operation—the project. Limiting releases like they are in the temperature plan [designed keep the water cold to protect winter-run salmon eggs]at least we thoughtwould allow Reclamation to hold the commitments they made. But we’re on razor’s edge right now,” Peltier explained.

Peltier described how the process is holding up water release, “The National Marine Fisheries Service wants to keep as much water in storage as possible, in order to keep the cold water cool as long as they can. This is all to protect the winter-run salmon eggs that are in the gravel right now, protect them until the weather turns cool and things naturally cool down. Then they can release water. Shasta’s been effectively trumped by another million-acre feed because of this temperature plan.”

Peltier further noted that the Lake Shasta temperature plan has not allowed water to flow into the Sacramento River. It has severely impacted growers in Northern California on a year when the northern part of the state received above average rain and snowfall during the winter.

“People diverting off the river in the Sacramento Valley have had their own water level issues. There hasn’t been enough water coming down the river to get elevation enough adequate for their pumps. There’s been a lot of ground water pumping,” he said.

The nearly extinct Delta Smelt has been a longstanding issue for those affected by California’s drought. After the past five years of sacrifice, even more water is being taken from agriculture and cities to help save the fish from extinction.

“We’ve got the California Department of Fish and Wildlife wanting significant increases in delta outflow over the summer, supposedly for the benefit of delta smelt, another operational complexity that is sadly not based on any science that we could see. The agencies have their beliefs, and they have the power,” said Peltier.

Featured photo: Jason Peltier, executive director of the San Luis & Delta-Mendota Water Authority.


California Ag Today will update readers on Bureau of Reclamation announcements about the 5% contracted water delivery federal water district growers were expecting.

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VIDEO: Other Stressors, Not Pumps, Leading to Delta Smelt Decline

VIDEO: Wasted Freshwater in Failed Attempt to Save Delta Smelt and Salmon

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The VIDEO addresses this loss of freshwater unused by California residents and businesses still suffering from both drought conditions and environmental water cutbacks and that could have gone into water storage.

Decline in California Fish Population and Delta Smelt, Salmon

Western Growers accuses government agencies in charge of managing California’s water of restricting the Delta pumps far beyond what is required by the law. “As a result,” the association said, “billions of gallons of El Niño water have been flushed out to sea. Shutting down the pumps has not helped the Delta smelt and salmon recover, and government regulators are ignoring other stressors such as predation, invasive species and wastewater discharges.”

Delta Smelt Troll 2016
Delta Smelt Troll, Survey 6, 2016: “There were no Delta Smelt collected.”

______________________

Western Growers, founded in 1926, is a trade association of California, Arizona and Colorado farmers who grow, pack and ship almost 50% of our nation’s produce. Their mission is to enhance members’ competitiveness and profitability by providing products and services with agriculture in mind. Services include Affordable Care Act (ACA) compliant health benefits for farmworkers, cost-saving and environmentally-focused logistics, food safety initiatives and advocacy for members. 

They ask, “If you enjoy fruits, vegetables and nuts, support our members and the produce industry.”

Featured Photo: Delta smelt by metric ruler (Source: USFWS)

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Justification for Reclamation’s 5 Percent Allocation

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!

California Orchard Removal
California Orchard Removal

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.

Central Valley Project USBR
Central Valley Project (Source: USBR)

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.

3-28-16-reservoir_conditionsCavanaugh: Well, it’s laughableonly 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 topwas sent out?

Moore: We are still coming 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.

Drought Monitor March 29, 2016
Drought Monitor March 29, 2016 (Source: The National Drought Mitigation Center)

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.

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A Call for Common Sense Water Management

California Water Management Dilemma

By Lawrence H. Easterling, Jr.

Larry Easterling
Larry Easterling makes a comment at a recent pistachio growers meeting.

We are witnessing the dismantling of the California water conveyance system that supplies drinking water for 25 million California residents and four million acres of prime farmland in the San Joaquin Valley.

Our water resources are being “Withheld” from the very people of this state who have shown what “Free Enterprise” can do not only for the well-being of all in California, but the entire nation. Unfortunately, several major environmental groups and complacent politicians are killing the freedoms that have been the bulwark of success in California. Let me explain.

Water is our most valuable renewable resource and Mother Nature gives it to California in copious amounts during most years. What we do with that water—water management—is critical to the future of the Golden State.

On average, 200.0 million acre-feet of water a year blankets our state. One acre-foot is equal to 325,851 gallons of water. Of that precipitation, 75% originates north of the Sacramento River. The other 25% falls in central and southern California.

The water that is not manageable by us is 120.0 million acre-feet. Some of it evaporates, but most of it settles into the ground, fills lakes, and what remains heads for the Pacific Ocean. The balance of the water is called “directable” surface water (80,000,000 acre-feet) and this is where we have the opportunity to put it to its best and proper use.

By 2005, according to the Department of Water Resources, 48% of that directable water went to the environment, 41% to agriculture and the remaining 11% to rural areas. This balance of such a precious resource seemed at the time to be equitable to all parties, thanks to the ingenuity of our forefathers in the 20th century. Their foresight gave us a water conveyance system second to none in the entire world.

 

California’s water conveyance system had four major objectives:

  1. To provide reliable water deliveries to 25 million people to avoid water shortages that would otherwise exist and continually plague two-thirds of the California population.
  2. To support four million acres in central California of what the National Geographic Magazine proclaimed to be the most productive farmland in the world.
  3. To reinforce our natural environment.
  4. To recharge our groundwater supplies.

Some distinctions should be made here as to how much directable water we are actually concerned about. At full capacity, the two California water conveyance systems—the State Water Project (SWP) and the federal Central Valley Project (CVP)—deliver water from northern California to southern and central California. Each system, the CVP and the SWP, has the capacity to each deliver 4.0 million acre-feet water each year. However, this water delivery capacity has never been tested. The record shows that in the years prior to 2005, the average total delivery COMBINED for both projects was 5.4 million acre-feet per year. The ultimate users of this water went to agriculture (60%) and the rural population (40%).

The volume of water available, on average, from the Sacramento River, including the San Joaquin River, is 30.3 million acre-feet. It is from this volume of water that the 5.4 million acre-feet are sent south.

In 2007, several environmental organizations led by Natural Resources Defense Council took the Department of Water Resources to court to compel the court to enforce the Endangered Species Act (ESA). The court ruling to enforce this law declared that the giant water export pumps that raise the water from the Delta into the California Aqueduct were cut back because it was suspect that the pumps were killing too many delta smelt, an endangered species.

Even in flood years restricted pumping has reduced the water flow to a fraction of the contracted normal flow. Henceforth, since 2007, our water deliveries to urban and agricultural areas have been severely compromised.

The enforcement of these laws is now negating the four major functions of the giant California water conveyance system outlined with the possible exception of the natural environment. Now mind you, this water comes from northern California where 75% of the rain in California falls, averaging over 50 inches a year. Central and southern California “average” less than 15 inches a year.

During the seven years from 2007 through 2014, average deliveries to farms have been reduced to less than one acre-foot per year. Most agricultural crops require 3 ½ acre-feet of water per year. Today, without recourse, these farms are left with barely enough water to keep their plants alive. As for the hardship visited upon 25 million consumers, the Metropolitan Water District (MWD) in southern California is a good example.

The MWD services 19 million accounts, and prior to 2007, was receiving 40% of its water from the SWP. That water source has now only been able to supply approximately 10% of their needs. Consequently, due to seeking other sources to replace their water losses, rate increases to their customers over the years 2007 to 2014 have doubled. On top of all these setbacks, Mother Nature now has shown us her own drought versus our manufactured water crisis. All the way through this synthetic drought, the average rate of precipitation at the source of our water in northern California has been 45 inches each year.

In order to survive, those of us who must have an adequate supply of water to sustain us have been forced to pump more groundwater and/or purchase water from farmers who idle farmland and transfer their water to areas severely threatened with water shortages. For some of those lucky enough to find water for sale, the cost of water has become a severe financial burden. Where farms in the Central Valley were, prior to 2007, paying just under $100 per acre-foot, today if a willing seller can be found, the price can range anywhere from $1,000 to over $2,000 per acre-foot. In many such cases, water costs can exceed all other cultural costs combined. Likewise, the aquifer has dropped every year since 2007 due to frantic attempts by farmers to supplement the critical loss of surface water.

 

WHAT MUST BE DONE:

The effects of water deprivation over an eight-year period by a man-made drought capped by one of nature’s real droughts, is wrecking havoc with the nation’s food supply. The state of California is now in the grips of the Law of Diminishing Returns and is incapable of averting a disaster due to environmental regulations. Consequently, this country’s NATIONAL SECURITY is being compromised. CONGRESS MUST ACT NOW before further damage is done. These actions need to be taken:

1. The Endangered Species Act (ESA) must be excluded from jurisdiction over the pumps, which move northern water to central and southern California. The pumps are presently operating at about 15% of their capacity. This measure should be permanent and under the management of the Department of Water Resources (DWR).

2. The Endangered Species Act needs to be revised in order to “protect all species”, including humans, from collateral damage due to methods employed to save one species that results in severe damage to other species. This would be implemented through a biological opinion that would INCLUDE a list of all species that would be adversely affected by the METHOD employed to protect one specific species. This measure would make right just one of the irregularities in this flawed law, which attracts litigation like bees to honey. The law does not need to be struck down, simply rewritten to safeguard “all” species, including human beings.

3. California’s magnificent water distribution and conveyance system has no peer in this world. It is a remarkable feat of engineering admired by those who have come from far and near to marvel at its accomplishment. Yet, by environmental fiat, it has been reduced to a token of its capabilities. “Directable” water in California originally ceded one-third of its 80,000,000 acre-feet to the environment.

Today, according to the DWR, the environment now takes, not one-third, but 50% of the direct able water, leaving the rest to urban and farming communities. This is not what the original framers envisioned, but under the DWR, its control has been gradually diluted by federal agencies such as the Environmental Protection Agency (EPA), and one of its extensions known as the STATE WATER RESOURCES CONTROL BOARD (SWRCB). THIS FIVE PERSON-BOARD IS STAFFED WITH ENVIRONMENTALISTS, such as their chairwoman, Felicia Marcos, a Governor Brown-appointee, whose professional background includes eight years with the EPA and five years with the radical Natural Resources Defense Council.

The influence of these federal agencies, backed by political power brokers’ lobbyists, has tilted the water distribution of surface water away from its original intended users. In essence, the environmentalists now control California’s surface water; and now, with the passage of the recent 7.5 billion dollar Water Bond, they will control our groundwater as well. If the water agencies do not perform with the desired results, the bottom-line is that final control will go to the SWRCB.

The ship of state now needs to be righted; it is drifting far off course. First of all, the EPA must be brought to heel. For a federal agency, it exerts far too much power. And, in so doing, has completely distorted California’s surface water delivery system. Next, the SWRCB must either be eliminated with FULL CONTROL restored to the Department of Water Resources, or completely reorganized as an ADVISORY BOARD to the DWR where ALL recipients of the surface water system would be represented. A ten-board membership might be in order, with a director and the nine remaining seats divided into three equal parts by experienced personnel in agriculture, city water management, and the environment, i.e., three persons from each classification and residents of northern, central and southern California.

4. Finally, one in every ten workers in California is either directly, or indirectly dependent upon the health of our vast agricultural industry.

It is time to step forward and reveal, with facts and figures, the house of cards that water management in this state has become. Likewise, those 25 million people in southern California, such as the MWD’s 19 million users who once got 40% of their water from the giant conveyance system, deserve to get that water back.

With years of a man-made drought compounded by a natural drought now in the eighth year, there is ample information available through various farm county records to quantify in lost dollars the cumulative effect of, (1) lost production due to forced fallowing of land, (2) water costs that are now ten times what they were prior to 2007, and (3) the heavy burden economically of converting hardworking farm labor to the welfare roles where some Central Valley towns are now approaching 50% unemployment. Combined, these costs will be in the billions of dollars, bloating further our California deficit.

The goal of society has always been to improve the human condition and for one generation to leave a better world for the next. The visionaries of the 20th century got it right. They delivered in spades to us, the beneficiaries, a modern miracle. It is a water conveyance system like none other to serve all the people of California. Where are those visionaries now? Rather than embrace the gifts of a reliable source of precious water, they proceed to dismantle the entire system. It is because of the system that California feeds the nation. This is not just a California crisis. It is one that will affect the entire nation. Look upon it as a national security threat and demand that our leaders do what is right for the vast majority of this country’s people.

 Lawrence H. Easterling, Jr. Administrator, Kettleman Pistachio Growers and Director, American Pistachio Growers

 

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Supreme Court declines to hear PLF’s challenge to Delta smelt “biop”

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.”

PLF’s argument: Delta Smelt Regulators Wrongly Ignored Economic Impacts

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.

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California Water Cutbacks Are Not Saving Delta Smelt

U.S. Supreme Court to rule on ESA-mandated water curtailments to protect Delta Smelt regardless of the cost to humans and economy

 

A summary of the California Department of Fish and Wildlife (CDFW) Fall Midwater Trawl Survey (FMWT) reports the lowest index for Delta Smelt in the 48-year history of this survey. The FMWT is mandated by the Delta Smelt Biological Opinion for the coordinated operation of the Central Valley Project and the State Water Project.

Jason Peltier, Chief Deputy General Manager of the Westlands Water District, sees these results as the “latest evidence of a failed regulatory regime.”

CDFW-Insignia-146x193The memorandum, sent from Steven Slater, CDFW Environmental Scientist, Region 3, to Scott Wilson, CDFW Regional Manager, Region 3, describes the Survey which annually measures the fall abundance of pelagic fish—fish which live neither near the bottom of oceans or lakes, nor near the surface, such as ocean coral reefs—since 1967. FMWT equipment and methods have remained consistent since the survey’s inception, which allows the indices to be compared across time.

According to the Memorandum, the FMWT annual abundance index is the sum of monthly indices from surveys conducted over the four months from September through December each year. During each monthly survey, one 12-minute oblique midwater trawl tow is conducted at each of 100 index stations used for index calculation and at an additional 22 non-index stations that provide enhanced distribution information.

The 2014 Delta Smelt index is 9, making it the lowest index in FMWT history. Delta Smelt abundance was highest in 1970 and has been consistently low since 2003, except in 2011.

Other fish also scored poorly. The 2014 age-0 Striped Bass index is 59, making it the third lowest index in FMWT history. Age-0 Striped Bass abundance was highest at the survey’s inception in 1967. The 2014 Longfin Smelt index is 16, making it the second lowest index in FMWT history. Longfin Smelt abundance was highest in 1967. The 2014 Threadfin Shad index is 282, which is the sixth lowest in FMWT history and the seventh in a series of very low abundance indices. Threadfin Shad abundance was highest in 1997. The 2014 American Shad index is 278, which is the second lowest in FMWT history and only slightly higher than the 2008 index of 271. American Shad abundance was highest in 2003. (Figures 2 through 6, below, illustrate these indices.)

2014_FMWT_graphs 1-4_Page_1 2014_FMWT_graphs 1-4_Page_2

In, “Delta smelt legal battle heads to Supreme Court,” published Wednesday in the LA Times, reporter David Savage, stated, “The delta smelt may be a small fish with a short life, but it has spawned a decades-long legal battle over water in California.
At issue has been a series of orders under the Endangered Species Act that at times reduce water deliveries from the Sacramento-San Joaquin River Delta to San Joaquin Valley growers and urban Southern California.”

Citing the severe state drought, the article reports that the Metropolitan Water District of Southern California attorneys are asking the U.S. Supreme Court to reconsider a strict federal rule from the 1970s that calls for curtailing the water diversions to protect the threatened delta smelt and other imperiled species regardless of the cost to humans and the economy.”

Lawyers for the Natural Resources Defense Council (NRDC) and U.S. Solicitor Gen. Donald Verrilli Jr. urged the court to turn down the appeals, the article states, saying the 9th Circuit was correct in saying Fish and Wildlife officials must take reasonable steps to protect an endangered species, regardless of the economic effect.

Kate Poole, an NRDC attorney, said the water agencies have “a long history of exaggerating the impacts “of protecting endangered fish in the delta, including Chinook salmon,” per the LA Times. “The underlying problem in California is that our demand for water consistently exceeds our supply, even in non-drought years,” she said. “Wiping out our native fisheries will not solve this problem.”

 

In response to the NRDC comments, the California Farm Water Coalition electronically published the following Today:

Kate Poole’s remarks, that farmers have exaggerated the impacts of ESA-based water supply cuts, would be insulting to the thousands of farmers, farmworkers, and local business owners who face not just bankruptcy, but the loss of their way of life. Hundreds of thousands of acres of farmland have been permanently fallowed. Farmers have switched to higher value crops to justify higher costs for reduced water supplies. Farmworkers have moved away, seeking employment because of job losses in communities like Firebaugh, Mendota and Huron.”

Communities were developed on the faith that was placed in the federal government to keep its promise to deliver reliable supplies of water through the Delta.  While the impacts of reduced water supplies seem insignificant to the lobbyists and lawyers from the kinds of powerful environmental organizations represented by Poole, for those whose very livelihoods are dependent on this water it is a constant struggle.

 

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Pacific Legal Foundation Appeals to U.S. Supreme Court Over Water Cutbacks Based on Delta Smelt Biological Opinion

On behalf of San Joaquin Valley almond, walnut, and pistachio growers, Pacific Legal Foundation (PLF) filed an appeal TODAY, asking the U.S. Supreme Court to review a Ninth Circuit decision this past March that upheld the Delta smelt “biological opinion” — an Endangered Species Act regulation that has caused devastating water cutbacks in Central and Southern California, worsening the effects of the current drought.

PLF’s petition for certiorari asks the High Court to reconsider — and reverse — the controversial precedent on which the Ninth Circuit relied:  the Supreme Court’s 1978 decision in TVA v. Hill, which gives a blank check for onerous species regulations, “whatever the cost.”

PLF’s appeal:  Regulators broke their own rules by ignoring economic impacts

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, regulations under the 2008 “biop” send vast quantities of fresh water directly to the ocean — instead of storing it behind dams or pumping south for use in cities and towns and on farms.  However, the smelt hasn’t improved — but the economy has suffered, with even more severe effects as the natural drought has set in.

PLF has been battling the Delta smelt water cutbacks for many years, and once before sought Supreme Court review, in our separate challenge based on the Commerce Clause.

PLF’s current case is based on the fact that the U.S. Fish and Wildlife Service violated its own regulations in drafting the Delta smelt biop.  Specifically, the biop’s drafters ignored the potential harms — even though they were supposed to take economic considerations into account.

Damien M. Schiff, Principal Attorney, Pacific Legal Foundation's National Litigation Center
Damien M. Schiff, Principal Attorney, Pacific Legal Foundation’s National Litigation Center

“Under the U.S. Fish and Wildlife Service’s own rules, officials must consider economic impacts of proposed ESA regulations,” said PLF Principal Attorney Damien Schiff.  “But with the smelt biop they bypassed this requirement.  We’re asking the Supreme Court to call them out for not making good on their legal duty — and on their duty to the public interest.

“The economic impacts that regulators ignored have been tremendous — and tremendously negative,” Schiff continued.  “Even before the drought, pumping restrictions fallowed hundreds of thousands of acres of farmland, contributing to unemployment of 40 percent in some rural communities.  In Southern California, we saw what amounts to a Delta smelt tax, with water rates hiked by 17 percent or more in some areas.

“The biop has also worsened the impacts of the drought,” he added.  “It reduced the amount of water that was stored when we had ample rainfall and should have been saving for the dry times.”

PLF asks Supreme Court to help drought-stricken Californiaby rejecting the Delta smelt biop — and 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 cited TVA v. Hill in upholding it.

“The Ninth Circuit’s ruling was another example of the anti-human bias of TVA v. Hill and its staggering assertion that species protection takes absolute precedence over all other considerations,” said Schiff.  “As California suffers a third year of drought, we are asking the Supreme Court for relief from illegal regulatory cutbacks on water — and from the pernicious judicial precedent that is used to justify them.

TVA’s indifference to the welfare of human beings was a misreading of the Endangered Species Act from the first, but it’s more incorrect than ever today,” Schiff said.  “Ironically, the Ninth Circuit’s decision undercuts Congress’ attempts to temper TVA’s extremism.  Congress added a framework to the ESA requiring ‘reasonable and prudent alternative[s]’ when protecting species.  The FWS’s rule for considering economic impacts furthers this purpose of bringing balance to the process.  Yet the Ninth Circuit has permitted the agency to violate that rule and ignore the devastating impact of water cutbacks on families, farms, businesses, and the California economy.

“In recent years the U.S. Supreme Court has begun to back away from TVA,” Schiff noted.  “The Delta smelt case offers the court an opportunity to help drought-scorched California — and to finally overturn this radical and harmful precedent.”

PLF represents Central Valley farmers

In all of PLF’s legal efforts against the Delta smelt regulations, PLF attorneys represent 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, a blog post, 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.

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