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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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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Storm flows lead to challenges for water system

By Kate Campbell; Ag Alert

After enduring three of the driest years in state history, nothing could be more heartening to farmers and ranchers than the steady march of Pacific storms that reached California this month. But good news is tempered by the knowledge that a few strong downpours don’t translate into full reservoirs and abundant supplies — and the storms revived concern about how state and federal water systems manage storm flows in a drought year.

The state’s reservoirs stand at about 57 percent of average, slightly below this time a year ago and well below full capacity.

“We’ve had years past where rain and snow didn’t continue into the New Year,” said State Climatologist Mike Anderson, pointing to the moisture cutoff last January that assured shortages for farmers who rely on surface water deliveries from the state and federal water projects.

“So far this year, precipitation levels depend on where you are—north of a Bay Area-Tahoe line, precipitation is above average, but in the south, levels are actually below average,” Anderson said. “In addition, there’s also below-average snowpack across the entire Sierra Nevada.”

He said most of the storms so far this water year, which began Oct. 1, have been warm, meaning snow accumulations aren’t building the way water managers hope. Sierra snowpack currently is about 50 percent of average, he said.

While December storms dropped significant precipitation, the California Farm Water Coalition noted last week that many of the state’s agricultural customers in the federal Central Valley Project worry that this year’s zero deliveries of surface water will be repeated in 2015.

“In the last few weeks, hundreds of thousands of acre-feet of water were in the system at the same time delta pumps were almost completely shut down,” coalition Executive Director Mike Wade said.

As these storms have come in, Wade said the water storage situation is similar to what was seen a year ago—except the state’s reservoirs are now lower.

“It’s very frustrating to watch water flowing through the system without being captured,” he said. “We have constraints in the delta that hold down the amount of water we catch to the bare minimum because of protections for delta smelt.”

During the height of the stormwater pulse moving through the Sacramento-San Joaquin Delta last week, he said, less than 10 percent of the surge was captured for storage and use next summer.

The state Department of Water Resources and U.S. Bureau of Reclamation, in conjunction with the U.S. Fish and Wildlife Service, said last week they are experimenting with pumping reductions to prevent a “turbidity bridge” from occurring in the central and south delta. Delta smelt are attracted to turbid, or cloudy, water because it makes the tiny organisms it feeds on more visible and provides shelter from potential predators, such as non-native bass.

DWR described the strategy this way: “Forgoing the capture of tens of thousands of acre-feet of water may allow water project operators to avoid the loss of hundreds of thousands of acre-feet of water supply later in the winter.”

A spokeswoman for the Bureau of Reclamation, Erin Curtis, said the storms present challenges in operating the system “to balance the critical need to quickly increase water supplies south of the delta while being cautious to not trigger environmental restrictions that could constrain delta operations and ultimately reduce the overall supplies.”

Representatives of agricultural water users said they’ll be closely watching the results of the operational change.

“It will be interesting to see if this is a worthwhile new operating principle at the beginning of each season,” said Chris Scheuring, an environmental attorney for the California Farm Bureau Federation. “The downside is that it might turn out to be a waste of water.”

“Clearly there is risk associated with a decision like this,” Wade said. “We hope the risk pays off.”

Fresno County farmer Dan Errotabere said due to the “turbidity bridge” theory and the lack of water transfer from the delta into storage, there’s serious concern about water supply management on the part of San Joaquin Valley farmers who rely on the state and federal projects for water deliveries during the growing season.

“Managing water during a drought is critical,” Errotabere said, noting that he fallowed 1,200 acres this year. “We’re losing opportunities now and, if the available supplies aren’t managed to capture available water to the fullest extent, we may not see a water allocation for the next crop year.”

He said he’s grateful for recent rainfall that helped reduce the need for irrigation of his winter garlic and wheat crops. The rain also helps leach salt, which has built up in the soil due to the region’s widespread use of drip irrigation and saltier groundwater.

“We’ve got to get off the groundwater because of its lower quality,” said Errotabere, who is vice chairman of the CFBF Water Advisory Committee, “and we need legislation to make sure good-quality irrigation water is put into storage. The rainy days are slipping away and we may find there’s no more available water to capture.”

Vince Dykzeul, a diversified grower from Modesto, urged creation of new water storage to help water managers respond to the ebb and flow of storms.

“If it’s true the climate is changing,” Dykzeul said, “if we’re going to have larger storms and longer droughts, then we need more water in storage to respond to these changing conditions. Water storage increases system flexibility and, if done right, everybody wins from having more water available.”

He noted that his farming operation is particularly vulnerable to flooding.

“Without adequate infrastructure to control storm waters, that’s when we have trouble,” Dykzeul said. “Nobody wants to talk about managing flood while managing through a drought, but I know the benefit of keeping both sides of the coin in mind.”

Federal weather forecasters said last week they expect continued average to above-average rainfall across California during the next three months, predicting an easing—but not an end—to the severe drought of the past several years. There’s also a 65 percent chance of weak El Niño conditions developing in the Pacific Ocean, which could influence winter precipitation, although experts say “anomalies” in climate patterns create forecast uncertainties.

“It’s not likely the drought will be broken this year,” said Steve Baxter, a National Oceanic and Atmospheric Administration forecaster. “But it’s likely (California drought) conditions will improve.”

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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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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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