Feinstein Urges President to Increase Delta Pumping

Feinstein Calls on President to Direct Federal Agencies to Increase Delta Pumping

 

Washington—Senator Dianne Feinstein (D-Calif.) TODAY called on President Obama to direct federal agencies “to maximize pumping in the Sacramento-San Joaquin Delta to the maximum extent allowed under the Endangered Species Act and biological opinions.”

Feinstein wrote in her letter to the president: “I believe that this year’s El Niño has highlighted a fundamental problem with our water system: A dogmatic adherence to a rigid set of operating criteria that continues to handcuff our ability to rebuild our reserves. We need a more nimble system. That’s why I included $150 million the past two years in the Energy and Water budget—so that decisions would be based on real-time data, rather than relying on intuition.”

Full text of the letter follows:

March 24, 2016

The Honorable Barack Obama
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear Mr. President:

I ask you to direct the Bureau of Reclamation, Fish and Wildlife Service, and National Marine Fisheries Service to maximize pumping in the Sacramento-San Joaquin Delta to the maximum extent allowed under the Endangered Species Act and biological opinions. Water flows in the Sacramento River are the highest they have been in four years. Just last week, flows in the Sacramento were as high as 76,000 cubic feet per second. We’ve only seen flows that high twice in the past ten years, and not once during this drought. Yet the Bureau of Reclamation and Fish and Wildlife Service are now considering reducing pumping due to concerns about larval smelt.

Despite these high flows, rather than pumping as much water as possible without undue harm to the smelt, pumping levels remained constant for the past month (see Chart B). Coupled with the fact that only three individual smelt were caught at the pumps this year, and that the most recent trawls revealed no Delta smelt in the south Delta, it seems to me that the agencies operate the system in a manner that may be contrary to the available data, culled from what is already a limited monitoring regime. I understand that the biological opinions impose a ceiling of -5,000 cubic feet per second, but the agencies have the discretion to exercise at least some flexibility to pump above that level.

To put this all in context, between January 1 and March 6 last year, 1.5 million acre-feet of water flowed through the Delta and 745,000 acre-feet were pumped out. During the same period this year, 5.5 million acre-feet of water flowed through the Delta, but only 852,000 acre-feet were pumped out (see Chart A). If we can’t increase pumping during an El Niño year, then when else can we?

The agencies have also put California and the communities that depend on this water in a Catch-22: Pumping is reduced when there are concerns about the presence of smelt caught as far away as 17 miles from the pumps. Yet agencies will also reduce pumping due to the absence of smelt, based on the idea that historically low smelt populations make detection difficult.

I believe that this year’s El Niño has highlighted a fundamental problem with our water system: A dogmatic adherence to a rigid set of operating criteria that continues to handcuff our ability to rebuild our reserves. We need a more nimble system. That’s why I included $150 million the past two years in the Energy and Water budget—so that decisions would be based on real-time data, rather than relying on intuition.

There are real-world consequences to the decisions being made in the Delta. 69 communities in the Southern San Joaquin Valley reported significant water supply and quality issues. And land is caving, bridges collapsing, as a result of overdrawn ground wells and subsidence. That’s why we need to make sure we’re using every possible tool to make the right choices. Basing pumping decisions on better science and real-time monitoring is the least we can do.

Sincerely,

Dianne Feinstein
United States Senator

###

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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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Groundwater Farming: a Blessing or a Curse?

By Michael Kuhne, AccuWeather.com

Mining groundwater for agricultural use in the San Joaquin Valley has not only created one of the most productive agricultural regions in the United States, but it has also simultaneously altered the surface of the land causing noticeable subsidence or sinking in the region, according to the U.S. Geological Survey.

“The maximum subsidence, near Mendota, was more than 28 feet,” USGS reported, citing a 1970 comprehensive survey.

Overall subsidence has slowed since the 1970s due to reductions in the pumping and recovery of groundwater, as well as the use of other types of surface water irrigation.

“At least some of the groundwater is stored in between clay deposits and within clay deposits,” AccuWeather.com Senior Meteorologist Ken Clark said. “When you extract the water, you take out the water surrounding (the) clay molecules, and this then allows the clay to compress. The more water you take out, the more compacting you have, and when that happens, the valley sinks.”

In the photo above, taken Tuesday, Feb. 4, 2014, a warning buoy sits on the dry, cracked bed of Lake Mendocino near Ukiah, Calif. Despite recent rains, the reservoir is currently only about 41 percent full. (AP Photo/Rich Pedroncelli)

According to U.S. Department of Agriculture National Agricultural Statistics Service Pacific Region Office Deputy Director Dave DeWalt, nearly 11.3 percent of the total value of U.S. agriculture commodities comes from California’s prime agricultural region.

“So far (in 2014) we’ve only seen about one-third of the precipitation we normally would have,” DeWalt said, referring to the Sacramento area.

With the drought continuing, food prices will spike.

“It is some of the richest farmland in the U.S.,” Clark said. “There is talk that some commodities may not be feasible as they take a lot of water to grow. Such as almonds, a huge cash crop. It takes one gallon of water to make one almond.”

According to Fresno State University Center for Irrigation Technology Consultant Sergeant Green, understanding the utilization of groundwater and the impacts on the Valley is not as simple as it seems.

“Water, crops and productivity are all dynamic,” Green said.

The current crops using the most water in the region are almonds and alfalfa, he said.

“Almonds are a critical export that helps with balance of trade, and alfalfa is critical for the dairy industry which is a huge part of the agriculture economy in the Valley,” Green said. “The three top agricultural commodities are almonds, grapes and dairy products.”

The San Joaquin Valley is part of the Central Valley of California, includes the Sacramento Valley and the Sacramento-San Joaquin Delta. This area produces about a quarter of the nation’s table food on only 1 percent of the country’s farmland, USGS reports.

Drought Map 140430The map above shows the impact of drought on California’s farms, forests and wild lands. (Credit: NASA Earth Observatory)

“Groundwater in the north of the Valley is relatively stable, the south Valley (Fresno south to Bakersfield) has declined consistently,” Green said. “Old pre-1960s subsidence stopped until surface water supplies from the Bay-Delta were cut back starting in the mid-’90s.”

According to the USGS, land subsidence in the Valley was first recorded in 1945 by Engineering Consultant I.H. Althouse.

“The history of land subsidence in the San Joaquin Valley is integrally linked to the development of agriculture and the availability of water for irrigation,” the USGS reported. “Further agricultural development without accompanying subsidence is dependent on the continued availability of surface water, which is subject to uncertainties due to climatic variability and pending regulatory decisions.”

The 10,000-square-mile area making up the Valley floor is comprised of continental sediments and includes fine-grained, stream and lake deposits, which are susceptible to compaction, the USGS reported.

“When farmers and ranchers have to rely on groundwater instead of stored above ground water during extended droughts, more water is being extracted than can be returned,” Clark said. “Once the clay is compacted, there is no way to ‘unpack’ it.”

According to AccuWeather.com Meteorologist Randy Adkins Jr., California has received less than their average rainfall for several years consecutively.

“It’s been a multi-year drought,” he said.

AccuWeather.com Meteorologist Jim Andrews said the last three winter rainy seasons (October to April) were drier than normal, the last winter being driest of the three. Cumulative rainfall (including melted snow) is as little as one half of normal amount for the three rainy seasons collectively, Andrews said.

“Fresno has only seen 55 percent of their normal for those three seasons,” he said. “That’s around 16 inches of rain less than normal.”

Andrews added that the Sacramento region has been doused with only 68 percent of their normal rainfall of 54.5 inches.

Green said rainfall is not adequate to recharge the groundwater, adding it needs to be stored, applied or recharged in specific areas that allow the capability to add more water than what is being extracted at those locations.

In addition, new developments in irrigation are being utilized currently, but the amount of water needed will continue to be based on what crops are in demand, Green said.

“Precision irrigation systems are now widespread and continuing to increase rapidly, but don’t always mean less water is used,” he said. “Crop requirements determine total demand, and permanent crops such as almonds have been increasing for some time.”

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Court Rules for Environmentalists in Water Fight

An appeals court said TODAY that federal officials should have consulted wildlife agencies about potential harm to a tiny, threatened fish before issuing contracts for water from the Sacramento-San Joaquin Delta, as reported by Paul Elias of the Associated Press.

An 11-judge panel of the 9th U.S. Circuit Court of Appeals in San Francisco ruled that the U.S. Bureau of Reclamation violated the Endangered Species Act when it failed to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service in renewing 41 contracts a decade ago. The appeals court sent the case back to a trial judge for further proceedings.

The ruling arises from one of several lawsuits filed by the Natural Resources Defense Council and other environmentalists seeking to protect the Delta smelt. The ruling won’t affect water flows because protections for the smelt were kept in place during the lawsuit.9th Circuit Court of Appeals

“This about how we are going to manage the water in the future,” said Douglas Obegi, a lawyer with the Natural Resources Defense Council.

Water-rights holders and government lawyers argued that consultation wasn’t necessary because the U.S. Bureau of Reclamation was required to renew the contracts and had no discretion over terms of the agreement that would control water levels in the Delta.

But the 9th Circuit disagreed, saying the Bureau had discretion over price and delivery times of the water, which affect water flow. Therefore, it has to consult with one of the other two agencies. The court also said that the bureau wasn’t required to renew the contracts.

Stuart Somach, a lawyer representing water-rights holders who intervened to fight the lawsuit, said the ruling “destabilizes” the state’s water-allocation system because it raises uncertainty over the contracts and water delivery.

Somach said he and his clients are still mulling their options, which include petitioning the U.S. Supreme Court to review the decision. They could also try to convince the trial judge to keep the contracts in place, he said.

His clients own water rights with or without contracts, which ensure predictable water allocation, Somach said. Predictability is lost if the contracts are invalidated, he said.

“The big loser in all of this is the state of California,” Somach said.

Source: Paul Elias, Associated Press.

 

Plaintiffs among the cluster of cases:

Natural Resources Defense Council; California Trout; San Francisco Baykeeper; Friends Of The River; The Bay Institute, All Non-Profit Organizations, Plaintiffs-Appellants, And Metropolitan Water District Of Southern California, Plaintiff In Related Case

V.

Defendant-intervenors–Appellees:

Jewell Associates, Lp; Reclamation District 1004; Beverly F. Andreotti; Banta-Carbona Irrigation District; Patterson Irrigation District; West Side Irrigation District; Byron Bethany Irrigation District; Carter Mutual Water Company; Howald Farms, Inc.; Maxwell Irrigation District; Meridian Farms Water Company; Oji Brothers Farms, Inc.; Henry D. Richter; Sutter Mutual Water Co.; Tisdale Irrigation And Drainage Company; Windswept Land And Livestock Company; City Of Redding; Coelho Family Trust; Eagle Field Water District; Mercy Springs Water District; Oro Loma Water District; Conaway Preservation Group; Del Puerto Water District; West Stanislaus Irrigation District; Fresno Slough Water District; James Irrigation District; Tranquillity Irrigation District; Christo D. Bardis; Abdul Rauf; Tahmina Rauf; David And Alice Te Velde Family Trust; Fred Tenhunfeld; Family Farm Alliance, San Luis & Delta-Mendota Water Authority; Westlands Water District; California Farm Bureau Federation; State Water Contractors; California Department Of Water Resources; Glenn-Colusa Irrigation District; Natomas Central Mutual Water Company; Pelger Mutual Water Company; Pleasant Grove- Verona Mutual Water Company; Reclamation District 108; River Garden Farms Company; Princeton-Codora- Glenn Irrigation District; Provident Irrigation District; Kern County Water Agency

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