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When in Drought, Corporate Agribusiness Attacks Bay-Delta Environmental Protections

Doug Obegi

Posted December 19, 2013

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As California begins what appears to be a third consecutive dry year, corporate agribusinesses and politicians in the San Joaquin Valley have begun calling for the State and federal government to waive environmental rules governing the Bay-Delta estuary – the same environmental rules that not only protect salmon and other wildlife in the largest estuary on the West Coast of the Americas, but also protect thousands of fishing jobs and water quality for Delta farmers.  

Ironically, at the same time that these special interests are seeking to waive State and federal environmental rules, the State of California and these same agribusinesses are asking Delta farmers, fishermen, conservation groups, and the public to trust that the massive new intakes proposed as part of the Bay Delta Conservation Plan will be operated according to strict environmental rules, which would limit diversions in dry years like this one.  Which begs the obvious question: what’s to prevent these same interests from waiving the rules in the future, after the tunnels are built??  These attempts to blame – and waive – environmental laws threatens the fragile potential for the State to build any new conveyance infrastructure in the Delta. 

And it is drought, not environmental rules, that are the overwhelming cause of water supply reductions. The water contractors’ own documents show that protections for salmon and other endangered species in the Delta account for only a small percentage of the water supply reductions this year, as this graphic from the Coachella Valley Water District’s December 10, 2013 Board of Directors meeting shows:

2011-2012 was the last time that Rep. Nunes and other radical House members sought to overturn federal environmental laws and preempt State law regarding management and protection of the Bay-Delta estuary (H.R. 1837).  We can refight these tired old fights if need be, or we can implement and strengthen existing environmental protections and work on longer term solutions, such as improving water use efficiency and water recycling and expanding South of Delta storage (groundwater and surface storage) to allow us to save more water in wet years for use during the inevitable dry years.  But it sheer hypocrisy for Westlands and other contractors to claim that they want to work with the agencies and conservation groups on collaborative science for the Delta and support extensions of the existing biological opinions, and at the same time run to Congress seeking to overturn those very same biological opinions and preempt State law. 

As I’ve written before, dry years also highlight the seeming inequities of California’s “first in time, first in right” water rights system precisely because senior water rights holders get 100% (including many agricultural districts in the San Joaquin Valley, including the so called Exchange Contractors), while contractors like Westlands or Kern County Water Agency get far less.  But just as water rights are the foundation of California law, so too is the Public Trust doctrine, Reasonable Use doctrine, and environmental laws that go back more than a century.   And in their efforts to waive environmental laws, the contractors and their allies in Congress pretend to uphold water rights but ignore that the water rights for the Central Valley Project and State Water Project explicitly are conditioned (see page 148 of this order) on full compliance with the state and federal endangered species acts.

The good news is that the Metropolitan Water District of Southern California has previously announced that the region is unlikely to face water supply shortages next year, despite also receiving a very low water allocation.  This is because Southern California has made significant investments in water use efficiency, water recycling, and other local supplies, and because they have invested in storage and saved water from wet years like 2011 for use in dry years like 2014.  This demonstrates the wisdom of the State’s decision to codify reduced reliance on water exports from the Delta as state policy.  While water transfers should help reduce impacts in the San Joaquin Valley this year, the region also needs to do more to reduce reliance on the Delta and to save water from wet years for dry years like this one.

Even with existing environmental protections in place, in dry years the environment already gets short shrift, with as much as 70% of flows diverted from the watershed, reducing flows into the Delta and San Francisco Bay.  My colleague Dr. Tina Swanson recently analyzed how drastically we have reduced flows through the Delta and into San Francisco Bay in recent years, creating permanent drought-like conditions as a result of unsustainable levels of diversions.  Reducing environmental protections in a dry year like 2014 is likely to further harm salmon and other native fisheries, which likely would result to future restrictions on water diversions as native fisheries decline.  Virtually every independent scientific review has recommended that reducing diversions in dry years is critical to sustain and restore the health of the estuary, and live up to the decades old promise to double wild salmon populations.  This has become known colloquially as the “big gulp, little sip.”

The State Water Project and Central Valley Project took a “big gulp” in 2011, the last wet year, exporting record levels of water from the Delta; will California carry through with the “little sip” in dry years like 2014, or will it waive environmental rules? 

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Mike WadeDec 20 2013 02:20 PM

Doug Obegi needs to turn up his reality meter when he's talking about farmers asking for "a waiver of environmental protections." As a lawyer he should know the difference between a waiver and a governmental agency exercising the discretion it has under the law. All farmers are asking for is that agencies consider a wide range of impacts, as they were directed by federal judge Oliver Wanger, and be a little flexible in difficult times.

That said, does Obegi think that fish should be insulated from the drought? They weren't 100 years ago before California's big water projects were built. Is it responsible to be using water stored for other purposes to maintain a dependable flow year-round for fish despite the fact that it is completely unnatural?

There is some middle ground to be had and the Governor, scientists, water planners and others are working hard to find it. Too bad Obegi isn't.

Mike Wade
California Farm Water Coalition

Jan McCleeryDec 20 2013 08:02 PM

Great article Doug. Valid, thoughtful post. Glad to see more and more being posted and in mainstream media pointing to the flaws and incorrect thinking the BDCP has embraced.

The water contractors/exporters have been rapidly degrading the environment for the past 20 years. We can't trust them to do the right thing when their track record is that every time there is a drought their vote is to decimate the salmon runs, the Delta farmers, and the Delta communities instead of doing what the original plan was: plant fields that can be followed during drought years but be ready to put extra water to beneficial use during wet years. If that isn't feasible, then the underlying tenant of the CVP and "excess" water exporting is invalid.

Since wet years are predicted to come less and less, the Kern and Westlands farmers really need to figure out how to go back to the original concept and cut back during drought years.

Instead they try to blame the bass, the Orcas, El Nina and everything else on the salmon decline rather than simply follow the SWRCB/Bay Institute recommendations and cut back on exporting during dry years.

Bob AllenDec 22 2013 01:12 PM

Hey Mike Wade, you want to talk about what's natural and what's not?!?! Building farmlands in the desert is NOT natural! Even redirecting water and storing them is not natural! If we do things naturally, you and your damn farmland wouldn't be in existence today. So don't even say that reinforcing water flow for fish survival is not natural. If nature has its way, there would never be as much massive dry off of salmon eggs on river beds as we have today!

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