Water Rights "Hot Potato" and H.R. 1837

Last Thursday, the House Natural Resources Committee passed Congressman Nunes’ H.R. 1837.  Many of the problems that this reckless bill would cause are well known.   For example, the bill would:                                                                        

• Stop the consensus restoration program on the San Joaquin River.
• Block efforts to develop a balanced plan for the Delta, pursuant to the state Delta Reform Act of 2009.
• Block science-based protections for salmon and other listed species in the Bay-Delta and its rivers.
• Prevent the state of California from using state law, the state constitution or the Public Trust to manage its own water resources or to protect species in the Bay-Delta ecosystem.
• Threaten the survival of California’s commercial and recreational fishing industry – along with the thousands of jobs and hundreds of millions of dollars it contributes to the state economy.  
• Gut the landmark Central Valley Project Improvement Act, including reducing the money and water available for salmon and environmental restoration.
• Waive the requirement that new federal dam projects in the Central Valley comply with the National Environmental Policy Act.

Many of these problems are explained in the letters, editorials and statements you can find here.  But one of the thorniest problems the bill would create is a series of changes to California’s notoriously complicated system of water rights.  Congressman Nunes and the Westlands Water District have been quite forthright in admitting that one goal of this bill is to shift the responsibility to protect the Bay-Delta ecosystem to other water users. 

The water rights problem has haunted this legislative effort from the start.  The first version of the bill would have blocked protections under federal law -- protecting junior CVP water contractors.  The problem is that, under state law, that language could have shifted the responsibility of protecting the Bay-Delta to State Water Project customers in Kern County and Southern California. Not surprisingly, they objected.   The next version of H.R. 1837 protected the State Water Project, but left upstream water users holding the bag.  That led Congressman McClintock to hold the bill for months.   Language in the new version of the bill, which was negotiated among water users represented by Congressmen Nunes, Lungren and McClintock, would benefit some Sacramento River water users. 

Across the state, water attorneys are now pouring over the new bill asking the same questions they asked when previous versions were released.  Who was out of the room this time?  Whose water rights would be undermined by this version?  Here are a few initial thoughts:

• The bill includes language (Sections 402 and 403) guaranteeing water deliveries to Sacramento Valley water districts. The bill takes the unprecedented step of guaranteeing full water deliveries for junior water contractors in the Sacramento Valley even in “below normal” water years.  This guarantee would apply in extended droughts, like that from 1987-1992.  Other CVP contractors, like EBMUD and the Santa Clara Valley Water District, receive no such guarantees. (That’s what happens to those who are not in the room when this bill is amended.)   As a result, when the next drought comes, this bill could reduce water supplies for the East Bay, Silicon Valley and other CVP customers.
• The Department of Water Resources predicts that climate change will reduce available water supplies in the Bay-Delta system.   The Sacramento River water delivery guarantee shifts this projected impact onto other CVP customers.  And the bill’s legislative provision extending CVP contract terms from 25 to 40 years (Section 103) would make it far more difficult for the Bureau of Reclamation to fix this problem. 
• The bill blocks science-based protections for the Bay-Delta and would impose in their place outdated standards set nearly 20 years ago. As inadequate as those standards are, the Sacramento Valley water delivery guarantees would shift the responsibility to meet them to others in the CVP. (The East Bay and Silicon Valley again.)
• The bill would also prohibit the restoration of flows to the upper San Joaquin River below Mendota Pool – as called for by the San Joaquin River restoration agreement.   Well, the State Water Board is currently developing new standards to protect the lower San Joaquin River.  If this bill did not stop the Board’s effort to set these standards (which is far from clear), this bill would exempt the Friant water contractors from releasing water – shifting the burden of providing flows for the lower San Joaquin to the San Francisco PUC, the Modesto Irrigation District and the Turlock Irrigation District.   

The process of amending H.R. 1837 hasn’t been an effort to solve the state’s very real water problems.  It has been a game of water rights “hot potato”, with some water users trying to shift the responsibility of protecting the Bay-Delta, salmon and other species to their neighbors –threatening supplies in a state where water rights are protected with zeal. 

It’s disturbing that this irresponsible bill is now ready to be taken to the House floor.  But stay tuned.   I suspect that the game of hot potato isn’t over. 

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