Recycled Wastewater Could Help Growers of Permanent Crops
By Kyle Buchoff, CaliforniaAgToday.com
This would be enormously helpful for growers in the area, but Jasper said it hasn’t been easy. “We’ve been working on this for going on six years now,” stated Jasper. “We’ve been back to Washington D.C. three or four times, and we are getting a lot of support. Del Puerto would pay to build a pipeline across the San Joaquin River to take recycled water from Modesto up to the middle of the canal. It would cost over 100 million dollars of farmers’ money to get it done, but it would give us a reliable source of approximately 30,000 acre-feet, which would be 1/3 of what our needs are to take care of our district.
And Jasper noted the supply would particularly help growers of permanent crops, “Of the 45,000 acres in our district, about 27-28,000 are permanent crops, mainly almonds, grapes, walnuts, and cherries. So it is very important that we have a dependable water supply. Obviously, 2015 is the second year that we have had a 0% allocation, so it has been extremely challenging to keep our crops alive.”
Jasper stated the Del Puerto Water District, “has 15,000 acres have been idled in 2015 of our 45,000 acres.”
He expounded, “On the Westside, along I-5, we just don’t have groundwater to substitute for our 0% allocation, so it has been very very difficult.”
Jasper said the only way to survive the 0% water allocation was to purchase water from someplace else. “We’re trying to purchase the water,” said Jasper. “Last year, one of the growers I work with in the almond business was successful at purchasing 1,000 acre-feet of water at $2100/acre-foot, so they were able to get through last year. But they sold their orchard because they could not continue that kind of expense. Another grower I do business with bought 1000 acre-feet of water at $2000/acre-foot, was not successful, and subsequently sold his orchard last year. So we see that as good as the almond industry seems to some people–where there is water, where there isn’t water, almond farmers are really hurting. They are pulling orchards–we pulled 400 acres of our 2,000 acres already–and water the younger trees, which have a better future. You just make these decisions. It’s been very challenging.”
And Jasper said that the recycling project gives them hope, “This recycled water will really help if if we can get it through. We’re in the process and are very, very hopeful.”
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.
“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.
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.