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.

Will Southern California sell its maximum annual entitlement of 2 million acre feet of water from the State Water Project for a bundle of small water projects of uncertain yield, plus $2 billion of political pork barrel projects, if voters approve the proposed $11.1 billion Comprehensive Water Package, a bond proposal known as the “Safe, Clean, Reliable Drinking Water Supply Act of 2010”?

That is a key question for statewide voters to answer by the November 2010 election. And to do this they need to understand the package of water bills (SB1, SB 2, SB6, SB7 and SB8 from 2009) that have been cobbled together before they vote out of panic given the dire curtailment of water to Central Valley farmers and Southern California cities.

Forgetting for the moment that the state is broke, the entire approach of the $11.1 billion package of legislation is to first allocate money and then find projects to fit its major co-equal goals of Delta restoration and water supply reliability. This process is backwards from that of the Gov. Edmund “Pat” Brown era where alternative water projects were first evaluated by engineers for physical and economic feasibility, quantified for water yield, and then the best project was specifically selected and the public was asked to fund it with a bond issue.

‘Ready, shoot, aim’

We have no idea today how many, if any, of the myriad of proposed statewide water projects in the Comprehensive Water Package have any physical or economic feasibility. Rather, they are like former Gov. Jerry Brown’s failed geothermal “ghost” plants built in the mid-1980s, where the funding and political approvals preceded any idea of whether they were feasible in the first place. “Ready, shoot, aim” seems to be the panicky approach of the Comprehensive Water Package.

For example, the notion that urban Southern California wastes water by letting rainfall flow out to the ocean sounds good, but proposals to capture this water are misguided. Sure, large amounts of urban rainwater flow to the ocean. The drainage plans of most coastal cities in California were originally designed to divert rainwater to the ocean via flood control channels mostly built as jobs programs during the crisis of the Great Depression. Water and power during that era were to be supplied from far away by huge Works Progress Administration dam and hydro-power projects – not from local reservoirs and canals to capture urban runoff.

But urban runoff can’t be physically and economically captured. Where would one build the reservoirs – where houses exist today? There no longer is land available in urban cities to build another Santa Fe Dam such as currently exists in Irwindale or Prado Dam near the Corona in Southern California. Neither are there any new foothill dams that could be built like Morris Dam that is upstream from the San Gabriel River in Los Angeles County.

These are pipe dream projects that can’t possibly meet the needs of a growing population state. But such projects are apparently being considered for funding by the Comprehensive Water Package under the line-item designated for “Coastal Counties and Watersheds,” as well as other line items.

The Delta Master Veto Agency

A triangular-shaped island at the ocean mouth of many rivers is named after a similar shaped letter from the Greek alphabet – “delta.” Incremental sedimentary river deposits create a delta island or alluvial fan. The word “delta” also means the amount of change from deposits of a financial investment. But the new Comprehensive Water Package will not be incremental or gradual with respect to the change it will bring to the structure of California’s water system.

The Comprehensive Water Package creates a Delta Stewardship Council that will effectively abrogate Southern California’s existing maximum annual entitlement of two million acre feet of water from the State Water Project. It would have veto powers over the Metropolitan Water District of Southern California (MWD), the State Department of Water Resources (DWR), Westland Water District, the Sacramento Municipal Utility District (SMUD) and other water districts as to building any future reservoirs and canals. All future water infrastructure projects statewide would have to be vetted through the Delta Stewardship Council and its tentacle entities.

The package would create a seven-member Sacramento Delta Stewardship Council that would have quasi-judicial powers to balance the “co-equal” goals of “Delta restoration and water supply reliability.” The Delta Stewardship Council would consolidate the current patchwork of agencies and cities that have jurisdiction over the Delta.

A whole new state entity, the Sacramento-San Joaquin Delta Conservancy would also be created under the Natural Resources Agency, to implement ecosystem restoration of the Delta. A Delta Independent Science Board would additionally be created to advise the Conservancy and Stewardship Council. And a Delta Watermaster’s office would be created and funded to assure water quality enforcement. All these new entities would be linked with a larger web of existing committees and state agencies.

The Water Package is no less than a new reorganization of state water politics and implementation with the Delta getting first dibs at water and everyone else queuing up afterward. The long-proposed Peripheral Canal to divert water around the Delta is expressly forbidden under the water bill package. Cities and farmers are hoping that by passing the water bill package that the roadblock of fixing the Delta will surmounted and the Peripheral Canal can ultimately be built. But when would that be – 2050, if ever?

And what about the problem of bait and switch? The last time Southern California got a bundle of state water projects in return for building levees in the Delta it made sure to enshrine the projects in the state Constitution so that they could not be unwound at the next session of the state Legislature. There is no such guarantee in the water bill package. The hope that the package is a prerequisite for the Peripheral Canal, Auburn Dam or other water projects is an exercise in faith.

Even if Southern California water leaders are appointed as members of the Delta Stewardship Council they effectively will end up representing the Delta, not their water ratepayers. Who would end up advocates for Southern California cities, Central Valley farmers or even the urban ecosystem? Presumably, everyone outside the Delta would end up being represented by state bureaucratic officials. The Legislature would only have authority over water projects outside the Delta that the Delta Stewardship Council did not veto.

The Stewardship Council would additionally delegate to the State Department of Fish and Game and the Water Quality Control Board the responsibility to “identify the water supply needs of the Delta Estuary.” The water supply needs of urban or agricultural users would not be on their radar screen.

Of likely concern to cities surrounding the Bay Delta is that each city would have to certify to the council that development and land use decisions are compatible with the Delta Plan, subject to an appeal process. This would usurp “home rule” for many Bay Area cities and counties. Imagine something like the Coastal Commission suddenly having jurisdiction over your city, leading many observers to believe that the package is a simple power grab.

Water officials contacted in the process of writing this article anonymously stated that their educated guess as to how much of its water entitlement might flow to Southern California after the Delta gets to trump all water needs in the state is about 25 percent (500,000 acre-feet, or enough for about 2.5 million people). On a wet year, Southern California typically draws down about 500,000 to 1 million acre-feet of water from the State Water Project. The last time the MWD drew close to its maximum entitlement was 2001, when it drew about 1.7 million acre feet of water during the California Electricity Crisis. However, Southern California’s cities could lose their potential entitlement to water for 7.5 million people overnight on the November 2010 election.

The Delta Stewardship Council would theoretically offer a fix to the political fragmentation and dysfunctional log jamming that characterizes about every issue in the state. But even though the council would have broad powers to fix the Delta, it would also have the power to veto other water projects statewide, leaving only the Delta immune from the political dysfunction that exists in California government.

The Comprehensive Water Package would not be incremental but revolutionary. In concept it would save the Delta, but it would be “every man for himself” for the rest of California, albeit with the aid of some subsidies for local water projects and $2 billion in pork barrel projects for key politicians.

20 by 2020

This package of bills calls for a 20 percent reduction in baseline daily per capita water use by the year 2020.  It also calls for the volume of agricultural water to be measured for the first time.

Perhaps of most interest to the average person, it establishes a target of 55 gallons per capita daily for residential indoor water use. Taking a shower can use 25 gallons alone.

The water bill package gives water agencies four options for complying with conservation goals: (1) 20 percent reduction in daily use; (2) 20 percent reduction in regional imports; (3) utilize performance standards for commercial, industrial and institutional users; and (4) a method to be developed by DWR by 2010.

Processed water from recycling would not be subject to conservation mandates. The problem with conservation is that it works on the state level by eliminating the need for new costly and environmentally damaging dams and canals. But on the local level conservation only depletes local groundwater basins resulting in more reliance on imported water supplies.

Delta Council as Climate Change Talisman

The rationales for saving the Delta from environmental crisis are often depicted in quasi-religious apocalyptic terms: rising sea levels that would flood the fresh water Delta with seawater; warming temperatures would mean more rain and less snow pack in the Sierras, resulting in more floods; catastrophic earthquakes could breach Delta levees resulting in seawater intrusion that would end shipments of imported water to Southern California; global warming and pollution are killing off salmon and smelt fish populations. Realistically, the water bill package would prevent none of these scenarios.

The Delta Stewardship Council would be empowered to review transportation and land- use plans for impacts on climate change. This would include compliance with California Senate Bill 375, the “anti-sprawl bill,” that diverts new growth and development away from suburbs and edge cities and toward coastal cities.

An obvious problem with all this anti-global-warming and anti-sprawl legislation is that the most abundant groundwater resources in California are located inland and not toward the coast. So reducing auto pollution by shortening auto commutes or shifting to light rail would in turn result in more dependence on imported water supplies. Life is full of trade-offs and ironies never acknowledged by environmentalists or politicians. It is nonetheless strange that such a highly touted package of water bills would result in more dependence on imported water all in the name of combating global warming.

Another problem is that during a prolonged drought existing environmental laws make urban, agricultural and recreational users curtail water usage to great hardship. But the sacrosanct natural environment cannot even be stressed or have any species of fish decline in population due to natural causes without some lawsuit alleging harm from cities or farms.

The Environmental Defense Fund’s Center for Rivers and Deltas, flush with a $100,000 blind donation in 2007 from Meg Whitman, won a court injunction against transporting water through the California Aqueduct alleging that pumps at the Harvey O. Banks Pumping Plant on the California Aqueduct were the cause of the disappearance of the Smelt. But the Smelt don’t find their habitat only near the pumps, nor do they affect them. Today, Whitman ironically is probably the only candidate for governor likely to veto the water bill package if it came across her desk on her watch.

There are other plausible reasons for the smelt’s decline, including pollution and invasive species. Prior water quality improvements in the Delta have increased the population of natural smelt predators. The Smelt, like the famous Spine Stickleback fish, could have gone into hiding to protect themselves. Cleaner Delta water could also have reduced food sources the Smelt forage on such as Krill.

The courts have never addressed the favorable treatment under California environmental laws of the natural environment to the detriment of the urban eco-system. When a dam and reservoir is built, the natural eco-system that once depended on that water is transferred downstream to an environment of urban forests, gardens and wildlife. Urban lawns, rose bushes, tree squirrels and Koi fish ponds are not valued in our culture or laws as is the Delta smelt fish, coastal sage brush and kangaroo rats. “Save the Delta” – to hell with the cities and farms seems to be the mantra.

The California Environmental Quality Act (CEQA), measures gross, not net, impacts on the environment. For example, CEQA only measures upstream gross impacts of a dam without considering any offset for the downstream transfer of vegetation and wildlife from the wilderness to cities and farms. Are commercial poppy fields or urban arboretums any less of the environment? The poppies don’t know the difference whether grown in the wild or on a horticultural operation. Once commercialized, poppies (the official state flower) will be sustainable and protected forever.

The Delta Scientific “Certainty Wallahs”

The presumption for the creation of the Delta Stewardship Council and Delta Independent Science Board is that it knows or will know what is best for the Delta environment. This is a dubious presumption, even from a scientific standpoint. No one knows, nor can they know, what the ramifications of tinkering with the Delta ecosystem would be. Moreover, scientists are being asked to make cultural and political values judgments not dispassionate science

For example, say that sending more water to cities in the southern half of the state results in more seawater intrusion to the Delta. So instead of fresh water fish and plant species we get saltwater fish and vegetation. The freshwater species don’t necessarily die off as much as their population is reduced. They are merely replaced by a different type of ecosystem. Scientists can’t tell us which ecosystem is preferable; only cultural and commercial values enshrined in law can. The public can be sold on aesthetic values of species based on visualized depictions of their plight. But what about ugly species or vegetation that sucks up too much water from its “neighbors?” Those are often dubiously labeled “invasive” or “non-native” species.

After spending billions of dollars under the water bill package on cleaning up the Delta purportedly to make it a natural aquarium we can’t be assured that the unintended consequences of the cleanup won’t alter the ecosystem deleteriously. Sociologically speaking, the ideology behind saving the Delta is more anti-business and anti-urban than it is truly scientific.

In any case there is no new cheap water.

According to water officials this writer spoke with, the water bill package and Delta Stewardship Council and Delta Plan won’t make much of a difference because there is no new cheap water that can be created, at least quickly, without a return of the monsoons that periodically fill our statewide reservoirs. If so, California might do just as well or better if it just waited for rain relief rather than rush the water bill package.

Many contend that more water has been over committed from the Bay Delta. Southern California is entitled to a maximum of 2 million of the 4 million acre-feet annually of the State Water Project (WSP) that is routed through the Delta. Four million acre-feet of water sounds like an over-commitment during a drought. But in a drought the state has the right to reduce a water agency’s allocation.  So the argument of over committal of water is specious and often used for propaganda.

As radical as the water bill package is, it cannot change our meteorological fortune or misfortune. The ancients believed that gods controlled the world. In modern-day society we believe we can magically control nature with legislation, with the same result.

A three-year drought is normal by conventional water planning standards. However, if the drought persists to, say, an eight-year cycle as it has in the past, California will be in even more of a crisis.

Fixing the Bay Delta at the cost of farms and cities may ring a death knell for California. The solution lies not in affluence removal or perhaps not even in effluence removal. The environment has always improved with affluence, not the other way around.