By Katy Grimes

First there was the bullet train to nowhere. Now there are the tunnels to nowhere.

Gov. Jerry Brown is hell-bent on creating a legacy. Unfortunately, it also appears that most of California’s legislators make decisions based on legacy as well.

But lawmaking by legacy rarely bodes well.

Water wars

Brown announced Wednesday that the state intends to build two large tunnels to move water under the very fragile Delta, from Northern California to Southern California.

Where is Jake Gittes when you need him?

Gittes was the hard-boiled private investigator in “Chinatown,” the 1974 movie about the historical California battle over water. Set in Los Angeles in 1937, “Chinatown” was inspired by the California Water Wars, the historical disputes over land and water rights that raged in southern California during the 1910s and 1920s.

Gittes, played by Jack Nicholson, discovers that water is illegally being diverted, and that that agents of the water department have been demolishing farmers’ water tanks and poisoning their wells.

“Either you bring the water to L.A. or you bring L.A. to the water,” Noah Cross says, played by John Houston. Cross was the movie’s villain, and tried to gain control of all the water in Los Angeles.

It appears that like a character out of the movie, Gov. Jerry Brown has reignited California’s North-vs.-South battle over fresh water.

Water water everywhere, but not a drop to drink

Secretary of the Interior Ken Salazar  and Brown held a Sacramento news conference at the California Natural Resources Agency to announce a massive, multibillion-dollar water diversion plan, which many are saying is only another version of the peripheral canal plan that voters rejected in 1982, 30 years ago, during Brown’s last run as governor.

Brown is acting like a woman scorned. “Analysis paralysis is not why I came back 30 years later to handle some of the same issues,” Brown said. “At this stage, as I see many of my friends dying… I want to get s— done.”

How eloquent.

Brown called the plan “a big idea for a big state.” But the plan to funnel water from the Sacramento River to pumps that supply water to parts of Southern California, the Central Valley and the Bay Area, has many worried that Northern California will be faced with shortages.

Farmers, fishermen, and environmentalists, oppose the plan, and rallied at the Capitol. They say diverting Northern California water would be the final death blow to the fragile Delta.

Water Politics

Devastating environmental litigation resulted in cutbacks on one third of all water deliveries to California’s Central Valley, causing agricultural production losses, thousands of jobs, and hundreds of millions of dollars in crops.

Three years ago, the U.S. Fish and Wildlife Service ordered major pumping cutbacks into the California Aqueduct that delivers water to the state’s farms, based on arbitrary concerns that the giant water pumps killed the Delta Smelt, a tiny fish not even indigenous to the Delta. The Fish and Wildlife Service ordered 81 billion gallons of water, enough to put 85,000 acres of farmland back into production, to flow out to the ocean each year, instead of feeding California’s Central Valley farms.

Instead of fighting to feed California’s crops and farm families, and to repair the state’s agricultural lifeblood, Brown has created another public works project to feed unions and high-cost union jobs.

This is the second giant public works project deal this month that Brown has sealed.  Just two weeks ago, he signed bills to authorize spending to begin on the phony high-speed rail project, which will tear up valuable Central Valley farmland.

Brown’s political vanity is taking precedence over reforms; his need for a legacy is apparently more important than the 37 million residents of the state. Brown should have done the right thing instead.  Because as Chinatown’s Noah Cross is also famous for saying,”Course I’m respectable. I’m old. Politicians, ugly buildings, and whores all get respectable if they last long enough.”

By WAYNE LUSVARDI

California’s historic water social contract been held together by force, fraud and sometimes the consent of the governed.  The result has been Northern California giving up water to Central Valley farmers and Southern California cities in exchange for Delta flood protection, cheap hydropower and some water for themselves.

But due to the combination of the San Joaquin River Restoration Settlement Act of 2009, by Democratic U.S. Sen. Dianne Feinstein, and the California Legislature’s new Delta Reform Act, SB X7-1 from 2009, California’s historical water social contract is on the verge of cracking up.  There is too much force and fraud and too little consent of the governed.

Central Valley farmers want out of the coercive new state Delta and river restoration plans.  And for good reason: unlike a private contract where there are reciprocal benefits, there is little to nothing in the Delta Plan for farmers besides less water and more taxation that may make them uncompetitive with interstate and foreign competition.

The attitude is, “You can have your nitrate-free lettuce for $10 a head and with only symbolic resulting health or environmental benefits. And you will have to pay for Delta and San Joaquin River ‘restoration.’” “Restoration” is a sugar-coated term meaning “redevelopment” to benefit California fishing, recreational, tourist and real estate interests.

The old kind of “redevelopment” — using eminent domain to grab private property to benefit private developers — may be dead in California, but masquerading environmental “restoration” is alive and well in its place.

Rep. Nunes’ End Run Around Force and Fraud: H.R. 1837 

In response, Rep. Devin Nunes, R–Tulare, has drafted a bill in the U.S. House of Representatives called the “San Joaquin Water Reliability Act,” H.R. 1837, that would repeal the provisions of the San Joaquin River Restoration Act of 2009 on Central Valley water usage and replace it with the Bay-Delta Accord drafted in 1994.  Democrats such as then President Bill Clinton and Republicans such as then-Gov. Pete Wilson) approved the Bay-Delta Accord. So there was implied “consent of the governed.”

By contrast, Delta Reform Act of 2009 was entirely concocted by the Democratic Party. The San Joaquin River Restoration Settlement Act, H.R. 146, was passed as part of the Omnibus Public Land Management Act of 2009.   The terms “omnibus bill” means a package of bills whereby any one bill might have been rejected otherwise.

Part of the San Joaquin River Restoration Act limits how much water certain farmers can take for irrigation; and it imposed a tiered water rate system.  It also required that renewals of water contracts had to undergo an environmental impact report.

In essence, H.R. 1837 is a potential federal end run on behalf of Central Valley farmers around the San Joaquin River Restoration Act and Delta Reform Act.   H.R. 1837 is currently still in the House Natural Resources Subcommittee on Water and Power chaired by Rep. Tom McClintock R-Elk Grove.  H.R. 1837 would allow water contracts to be automatically renewed and would eliminate tiered water rates and environmental impact studies.  Also, in a dry year environmental and recreational interests would not have first dibs on water over farming, as is now the law.

Siamese Twin Water Systems Joined at the Delta & San Luis Canal

To comprehend this federal vs. state water war you first have to understand that there are three government water storage and conveyance systems in California.

One is the State Water Project, or SWP, that was built beginning in Gov. Pat Brown’s era in the 1950s and 1960s.  It includes Lake Oroville on the north, the Sacramento Delta, the West Branch of the California Aqueduct ending in Lake Castaic and the East Branch ending in Lake Perris both in Southern California.

The second system was built and is run by the U.S. Bureau and Reclamation and is called the Central Valley Project, or CVP.  The Central Valley Project is bigger than the State Water Project but is less well known.  The CVP includes Shasta Lake and Folsom Lake on the north.

The Central Valley Project was begun in California by the Federal government during the 1930’s Depression Era.  At that time California was broke.  The federal government took over the state’s water plan and built it out to stimulate the agricultural economy and bail out California.  Sound familiar?  California is once again broke, but wants to put an $11 billion water bond on the November state ballot to go further into a hole.

The third system is the Colorado River Aqueduct.

Federal-State Cooperation

Both the CVP and SWP systems use the San Luis Reservoir, O`Neill Forebay and the more than 100 miles of the California Aqueduct and its related pumping and generating facilities. A portion of the mid-section of the California Aqueduct — called the San Luis Canal — is a joint federal-state facility.   The Delta-Mendota Canal forks from the California Aqueduct and serves Merced, Madera and Fresno Counties (see map). These operations are coordinated at a Joint Operations Center in Sacramento.

The Federal Central Valley Project has long-term contracts with more than 250 contractors in 29 out of 58 counties; while 29 agencies have 50-year contracts with the State Water Project.

California’s Central Valley farmers want out of the coercive San Joaquin River Restoration Act and Delta Reform Act.  As in the 1930’s, it might be better to allow farmers to rely more on the federal Central Valley Project.  Unlike the 1930’s, agribusiness is now partly globalized.

Democratic legislators are portraying the Republicans’ proposed H.R. 1837 Bill as the “Evil Twin” of the two Democratic plans.

But which is the Good Twin and the Evil Twin? 

There is so much propaganda about H.R. 1837 that it is difficult to sort out what is force, fraud or the consent of the governed.  To listen to the mainstream image makers, you would believe that, of the two competing sets of laws, Nunes’ bill is the “evil twin” and Feinstein’s San Joaquin River Restoration Act and the Delta Reform Act of 2009 is the “good twin.” But this is an oversimplified fraud perpetrated on the public.

The National Resources Defense Council blog wants you to believe that H.R. 1837 would “preempt state water law and prioritize junior water rights.” If that were the case, then Feinstein’s San Joaquin River Restoration Act of 2009 also preempted state water law and prioritized junior water rights of fishermen and recreational, tourism and real estate interests over the historical water rights of farmers.

In case you need reminding, the National Resources Defense Council is the same environmental organization that brought the lawsuit causing the phony California “drought” from 2007 to 2010 and a bogus lawsuit to protect the Delta smelt fish; the lawsuit that was thrown out of court. The federal judge ruled the scientific basis of the Delta Smelt case was fraudulent.

According to the Western States Water Council — an organization of Western state governors dealing with water issues — Nunes’ bill is “the water uncertainty act.”  But “uncertain” for whom?

Yubanet.com, — which provides online news to the California Sierras — claims the Western States Water Council is “nonpartisan.”  The WSWC representatives for California are Gov. Jerry Brown and a bunch of bureaucratic apparatchiks who serve at the pleasure of the governor.

The Western States Water Council has, unsurprisingly, sent a letter opposing H.R. 1837, along with opposition statements by Democratic California Reps. Grace Napolitano, George Miller and Mike Thompson, as well as Rep. Ed Markey D-Mass.  No Republican opposition or support was reported because there are no Republicans as California representatives to the WSWC.   So much for the “nonpartisanship” of the Western State Water Council and so-called unbiased reporting from Yubanet.com.

Sustainability as Wealth Redistribution

What the San Joaquin River Restoration Act and Delta Reform Act do is re-distribute water and wealth from farmers to fishing, recreational, tourist and real estate interests in the name of river restoration and Delta sustainability.  No new water resources are created by either act.  Since farmers are typically not affiliated with the Democratic Party, some of their water is being legally confiscated by the force of law and the fraudulent ideology of environmentalism and given to non-farming constituents.  “RestoreTheDelta.Org” even admits that its goal is the “economic sustainability” of the Delta.

As for the Delta, the major source of pollution is not agriculture but municipal sewer treatment plants in Northern California.  What the Delta Plan will do is create a huge regional sewer district to reduce urban runoff into the Delta to be paid for mainly by farmers and cities in the Southern half of the state.  The Delta Plan is a fraudulent cost-shifting plan from Northern California urban polluters to water users statewide.

The combined river and Delta restoration plans will change the existing water social contract in California so that Central Valley farmers and Southern California cities get less water and in return Northern California gets Delta flood protection, cheap hydropower and a greater share of the water. Additionally, Northern California cities around the Delta will get a giant new Delta sewage management system to be paid for mainly by farmers and cities in the Southern half of the state.

The current Blue vs. Red water war over the Delta and the San Joaquin River restorations has implications for the pending state water bond on the November ballot.  If the Federal government passes H.R. 1837 and Pres. Obama’s signs it, this may replace the need for the State Water Bond.

According to Nunes’ statement in the Central Valley Business Times, “We have crafted a good bill that not only restores the flow of water but will ultimately make unnecessary the construction of a $12 billion canal to bypass the Bay Delta.”  The bypass Nunes is referring to is the Mendota Pool Bypass authorized under the San Joaquin River Restoration Act.

U.S. Senators Dianne Feinstein and Barbara Boxer have recorded their opposition to H.R. 1837, signaling that that the U.S. Senate, which is controlled by Democrats, will not pass the bill. But what tradeoffs the Republicans may be willing to offer is unknown.  Feinstein’s San Joaquin River Restoration Act of 2009 could only be passed as part of a package in an omnibus bill.  So maybe H.R. 1837 could also be passed as part of a package deal.

But should the federal government yet again bail out California with another water bill and bond as it did in the 1930’s?   If California voters reject the proposed California Water Bond on the November ballot, they will at least be voting to deny any funding for the fraudulent San Joaquin River Restoration Act and Delta Reform Act.  The public needs to be reminded that both Acts are actions of force and fraud and are not the reciprocal benefit contract of a market.

In fact, the San Joaquin River Restoration Act changes current State water contracts into mechanisms for water and wealth sharing by coercion. Democrats will buy new voter constituencies with these bills to be paid for by farmers and cities. But it will be called river and Delta restoration and sustainability.

This is also why California has had five water bonds totaling $18 billion since 2000 that have produced a mud puddle of water but a reservoir of fraud.

Force, Fraud or Consent of the Governed?

When Los Angeles water planner William Mulholland started buying land and water rights around Mono Lake in Northern California in the early 1900’s using shill buyers, there was obviously some fraud involved. There was “consent” of the parties to those transactions until Mono Lake farmers realized their water rights were being bought up and transferred elsewhere, and higher holdout prices for land could be obtained. But at least Los Angeles was paying for the farmland and water rights in voluntary transactions and at going market prices.

That is more than we can say for Feinstein’s fraudulent and coercive San Joaquin River Restoration Act and the California Legislature’s Delta Reform Act, where there is very little “consent of the governed” or just compensation as required by the U.S Constitution.

San Fernando Valley land speculation in Los Angeles has been replaced by so-called river and Delta “restoration,” but with the same wealth-transferring effect.

By WAYNE LUSVARDI

Is the Delta Stewardship Council:

1. A bunch of environmentalists appointed by politicians to produce endless numbers of useless plans to restore the Sacred Delta Ecology;
2. A group of water agencies serving the thirsty cities of Southern California to pull off a water grab of Northern California water; or
3. A group of Delta landowners who are opposed to the use of eminent domain to take any of their land or water rights for water conveyance facilities for Los Angeles.

Correct answer: None of the above.

The Delta Stewardship Council is a state agency actually created by the California Legislature in 2009 as part of the Delta Reform Act: Senate Bill SB X7-1.  The council’s task is to devise a Delta Plan and Environmental Impact Report  to accomplish what are called the “co-equal goals” of the legislature:

1. Providing a more reliable water supply for California; and
2. Protecting, restoring and enhancing the Delta ecosystem.

The Draft EIR that is now being vetted in different points around the state emphatically clarifies that “restoring the Delta” does not mean returning the Sacramento Delta and Suisun Marsh to a pristine condition by pulling out all the water pumping plants.  According Keith Coolidge, a member of the Stewardship Council, shutting off all water pumps to farmers and Southern California cities wouldn’t restore the Delta anyway.  He was speaking Thursday at an official meeting of the council held at the Pasadena Public Library.

Coolidge said the council’s mission is, “Not to sacrifice the Sacramento economy for the ecology, but also not to sacrifice the ecology for water supplies.”

The purpose of the meeting was to accept formal comments to the Draft EIR for the Delta Plan, which should be finalized in late spring 2012.  Afterward, the council will finalize its Delta Plan, which will become enforceable law.

Diversification?

Emily Green runs a popular water blog, “Chance of Rain.” She asked, “If we’re going to be required to diversify water supplies, where is that diversification coming from?”

Here the council was evasive. Coolidge said there was not necessarily going to be a loss of water or a gain in water supplies.

But common sense dictates that, if there is equal footing between a) Delta eco-system restoration and b) supplying water for farms and cities, the farms and cities are going to have their water supplies cut, especially in dry years.  The members of the council were adept at side-stepping this hot-button issue because the California Legislature has put them on the hot seat.

The maximum total amount provided to cities and farms under the State Water Project is 4 million acre-feet of water per year. That is 4 million football fields of water one foot high; or enough for 8 million households.  Alternatively, it is enough irrigation water for 4 million acres of farmland.  But the actual amount varies each year depending on Sierra snowpack and precipitation.

Southern California is entitled to a maximum 1 million acre-feet of water per year from the State Water Project.

Pasadena resident David Powell is the former head of the State Department of Water Resources’ San Diego Office and head of engineering for the Alameda County Water District. He previously told me that Southern California would likely suffer a cut of half of its water supplies under the Delta Plan.

Phil Isenberg, the Delta Stewardship Council’s chairman, clarified that the Water Code specifies two broad goals for the diversification of water supplies: conservation and greater efficiency.  However, it does not spell out what type of conservation or water storage and conveyance facilities might eventually be built.

Isenberg emphasized that the council is an independent body that can formulate enforceable policies. But it does not have the power to levy taxes, fees and fines, or to authorize bonds.  Those activities will still be done by the Legislature in tandem with voter approval, where required.  Thus, voters will not be taxed without representation.

‘Covered Actions’

Nonetheless, there are still obscure parts to the Delta Plan.  It requires state or local agencies to clear any actions that directly affect the Delta with the Delta Stewardship Council under what is bureaucratically called a “covered action.”   Isenberg said that there were a lot of exclusions to what a “covered action” would pertain to.   Unfortunately, the term “covered action” will likely be the butt of jokes as it sounds like “covert action.”  What it really means is, “actions covered” by the Delta Plan.

I asked whether the Delta Plan, once enacted, would require revision of existing legislation on the books that conflicts with the new Delta Plan. No one on the council knew.

I asked, in particular, if SB 375 –- California’s “anti-sprawl” bill — requires that population growth be directed toward the urban coastline, which has sparse groundwater supplies.  And I asked: If demands on Delta water are going to be lessened, would that mean diverting population growth to inland areas where there are more abundant groundwater supplies to rely on in dry years?

Staff legal counsel Chris Stevens replied that SB 375 is not one of the exemptions to the Delta Plan or “covered actions.”  This might mean that all the hodge-podge of existing laws on the books that conflict with the Delta Plan might remain in place.

However, determining which environmental policy takes priority over the other is a job for the Legislature, not the Delta Council.

Values, Not Science

Unfortunately, the Delta Council has been given only vague directions by the Legislature as to how much freshwater, saltwater and brackish water habitat is desirable public policy for the Delta.  As environmental scientist William Cooper has said, ecosystems such as the Delta can be operated as a freshwater habitat for salmon and sport fishing; a saltwater habitat for catfish and commercial fishing; a brackish water habitat for minnow such as the infamous Delta Smelt; or a mix of the above.  The choice of the mix of these water habitats is not an issue that can be determined solely by science.  They are cultural values; albeit there are some limits as to how much of each type of ecology can be engineered.

Unfortunately, the Legislature is still covering its actions with scientific justifications for what are unavoidable cultural and political value judgments.  It is asking too much of scientists and too much of the Delta Stewardship Council.

It might behoove the Legislature to consider adding a water sociologist to help in developing what cultural values are important.  Then Delta scientists can determine what is feasible and develop a before-and-after plan.

Isenberg also clarified that the proposed $11.1 billion Water Bond for the November 2012 ballot will not halt the adoption or enforcement of the Delta Plan or EIR.  He said only some projects would be affected if funding were not provided.

Bureaucratic Restoration

The Delta Stewardship Council is not only tasked with repairing the Delta, but repairing its image around the state.  To do this, it is holding meetings at various locations to take official comments to its Draft Plan EIR, even though it’s not required to do so.

The next meetings are:

Central California
Tuesday, January 17, 2012, 6 p.m.
Ceres Community Center, Large Assembly Room
2701 4th Street, Ceres, CA 95307

Delta
Wednesday, January 18, 2012, 6 p.m.
Clarksburg Middle School Auditorium
52870 Netherlands Road, Clarksburg, CA 95612

Northern California
Thursday, January 19, 2012, 6 p.m.
Willows City Council Chambers
201 North Lassen Street | Willows, CA 95988

Clarification

But the council might improve its public image if it clarified that it is the “California State Legislature’s Delta Stewardship Council,” not some presumed association of environmentalists, water agencies, farmers, Delta landowners and recreational fishing advocates.  And that unfortunate bureaucratic term “covered actions” might have to be reconsidered.

If the Delta Council is going to be perceived as more than some secret society that shrouds its decisions in scientific language, the Legislature is going to have to do a better job of clarifying what it wants the Delta to look like before and after its proposed plan. In postmodern California, “science says” has become the equivalent of, “God willed it.”

The Delta Stewardship Council is working hard at restoring its public image and eventually re-engineering the Delta.  But it’s going to need more clarification from the Legislature than the vague project alternatives detailing how much water should or should not be exported out of the Delta. It needs a vision and a map of what it wants the Delta to look like.