As a presidential candidate, Donald Trump’s promise to help Central Valley farmers get more water and to reduce environmentalists’ influence over the federal government got him a

As president, for a variety of reasons, Trump so far has only been able to provide part of the relief on water supplies that many in the Central Valley sought, even in the wake of a winter rain deluge. But Trump has signaled his intent to honor his promise to help the region by choosing David Bernhardt – a veteran of California’s water wars – for the No. 2 job in the Interior Department.

Bernhardt is a Colorado-based partner in Brownstein Hyatt Farber Schreck, a multi-state law firm which has on four occasions represented the Central Valley’s Westlands Water District, the largest U.S. irrigation district, in lawsuits targeting Interior Department policies. The law firm has been paid $1.3 million by the water agency since 2011.

Bernhardt’s Senate confirmation is expected this week or soon thereafter, but it may be close to a party-line vote. At a May 17 meeting of the Senate Committee on Energy and Natural Resources, Bernhardt was grilled by ranking Democrat Maria Cantwell of Washington and other Democrats over the conflicts of interest he would face because of his history representing Westlands and Cadiz, a Los Angeles land development firm that has fought with federal regulators over its audacious plan to access the water in a Mojave Desert aquifer.

Bernhardt: Effect on jobs should matter in regulatory decisions

At the hearing, Bernhardt repeatedly said he would avoid issues involving former clients unless given the blessing of Interior Department ethics lawyers. But Bernhardt’s remarks in answer to another question explain why he may be such a threat to the Central Valley’s water status quo.

When asked about his commitment to “scientific integrity” in enforcing Interior Department policies, Bernhardt said, “I will look at the science with all its significance and its warts. You look at that, you evaluate it and then you look at the legal decision you can make. In some instances the legal decision may allow you to consider other factors, such as jobs.”

This is music to the ears of many Californian Republicans, starting with Rep. Devin Nunes, R-Tulare. He has long contended that the Central Valley has suffered from a “man-made drought” because of bureaucratic decisions that interpret laws in ways that place the interests of  endangered fish such as the delta smelt over the needs of humans – despite no compelling legal obligation to do so.

The Obama administration rejected the contention, saying that its actions to use fresh water supplies to help sustain the delta smelt instead of helping Central Valley farmers followed laws requiring the federal government to protect endangered species and the ecosystem of the Sacramento-San Joaquin River Delta. Administration representatives said the decisions Nunes slammed as arbitrary were anything but.

Yet the highest-profile fight between Bernhardt’s law firm and Obama’s Interior Department wasn’t about the delta smelt or allegedly dubious bureaucratic maneuvering. It was over toxic substances in the irrigation water coming from Westlands’ 940 square-mile district. Despite criticism from environmentalists, the Obama administration agreed to a settlement on how the problem would be ameliorated that the Fresno Bee estimated could save the water agency more than $375 million. Greens who didn’t like the ruling couldn’t overcome the case that Bernhardt built that federal courts had consistently held that the federal government bore the burden for building drainage systems to limit the impact of the toxins.

Feds control 100 million acres of land in California

But Bernhardt’s confirmation would also insert him in other California water issues.

As a Sacramento Bee editorial noted, the deputy interior secretary historically has been “directly involved in virtually every aspect of California water, from the Colorado River agreement in the south to the Klamath River in the north, and, especially, the operations of the Central Valley Project.”

Given that the federal government owns or effectively controls 100 million acres of land in California – second only to Alaska in federal land holdings in the 50 states – this focus by the agency’s number two official is unsurprising.

But the larger war over how California’s limited water resources are used seems far from over. The compromise’s approval is sure to spur new court battles. It could also embolden House Republicans like McCarthy and Devin Nunes, R-Tulare, and conservative think tanks to seek further changes in federal policies.

Environmental groups are expected to sue over new rules which allow federal authorities in charge of water supplies in the Sacramento-San Joaquin Delta to deliver more water to farmers in periods of drought.

The Endangered Species Act has been a potent weapon for environmental groups, which have often succeeded in getting judges to adopt broad interpretations of provisions that have been used to protect the delta smelt and Chinook salmon in Northern California waterways. This thinking is reflected in a lawsuit filed in March by green groups, which say even the strong environmental stances of federal and state regulators under Democratic President Barack Obama and Democratic Gov. Jerry Brown don’t go far enough in providing fresh water to the delta.

Such tactics awaited George W. Bush after he became president in 2001. His administration was stymied in efforts to shift environmental policies by legal action and effective lobbying in Congress. By one tally, environmentalists won 27 of their 38 suits against the two-term president.

Endangered Species Act long a Republican target

But the same attitude seen in Natural Resource Defense Council lawsuits against Democratic administrations — why settle for a good result when more is possible? — could soon animate Republicans, especially those who have chafed at how much control the federal government has over land-use decisions in the West. Nunes in particular has long railed against federal indifference to the concerns and needs of Californians.

The Washington consensus is that Feinstein cut a deal because of the fear that a Trump administration would go much further in revamping interpretations of existing water and endangered species laws. This led her to make a major concession to McCarthy: Allowing the secretary of commerce and the secretary of interior to play a key role in determining in how water is allocated between the Delta and farmers.

That provision alone could turn California water policies upside down.

Trump’s nominee for commerce secretary, billionaire investor Wilbur Ross, doesn’t have high-profile views on land-use issues. His nominee for interior secretary, Montana Rep. Ryan Zinke, is open to the federal government allowing much more of its land to be used for oil and gas drilling, but has spoken of the importance of preserving public lands.

There is also the possibility that the Trump administration could target the Endangered Species Act itself — either through executive orders reinterpreting the law or by encouraging congressional action.

Conservative think tanks have long faulted the species act for far more than denying water to Central Valley farmers. It’s viewed as the California Environmental Quality Act is seen by business groups and conservatives in the Golden State: as a blunt, coercive tool to win land-use battles.

A 2007 report by the Dallas-based National Center for Policy Analysis offers a framework for the sort of policies the Trump administration could pursue.

The most decisive — and most controversial — would simply be for the secretaries of commerce and the interior to make it more difficult to a species to be designated as endangered and easier for a species to be taken off the protected list, reducing the authority now wielded by the U.S. Fish and Wildlife Service. Conservatives have long argued that designations of 1,300-plus native species and plants are excessive and arbitrary.

President Obama has decided to side with Sen. Barbara Boxer and California environmentalists in their battle with Sen. Dianne Feinstein and House Republicans over Golden State water policy.

On Monday, Feinstein announced that she had reached agreement with legislative leaders to place a provision providing $588 million for California water storage, desalination and recycling projects into the massive omnibus infrastructure bill that’s expected to pass Congress by year’s end. The deal also included a change in water allocation rules that would take some supplies away from the Sacramento-San Joaquin River Delta and give it to Central Valley farmers temporarily for five years.

The announcement prompted relief among Central Valley politicians, who had been fighting for just such changes for years only to be turned back by Senate Democrats.

Reflecting this history, Boxer — in her final month as a California senator — was the sharpest critic of Feinstein’s compromise. She said the deal threatened the health of the delta and could harm the salmon fishing industry and kill off the endangered Delta smelt.

But hopes that the logjam might have been broken blew up Tuesday when the Obama administration revealed it shared Boxer’s objections to the California provision.

“Based on what we know so far, we don’t support the kinds of proposals that have been put forward to address some of the water resources issues in California right now,” White House press secretary Josh Earnest said, according to McClatchy News. “So, we don’t support that measure that’s being put forward, but we’ll take a look at the bill in its totality.”

Prospects for water changes strong under Trump

This could doom the proposal in the short term. But given how popular the omnibus infrastructure has been in recent weeks among lawmakers eager for a big legislative triumph, it may pass over an Obama veto.

Whatever happens in the next six weeks, on Jan. 20, when Donald Trump takes over as president, the Central Valley is likely to have the most sympathetic president it’s had in the 50 years since the environmental movement began racking up victory after victory in Congress and the courts.

Trump made appearances in the Central Valley in May and August, the first time for a rally in Fresno and the second for a fundraiser in Tulare. At the rally, he expressed contempt for policies that he said favored fish over human needs. He also appears to have a good relationship with Rep. Devin Nunes, R-Tulare, who has been among the loudest critics of state and federal water policies’ effects on the Central Valley.

Nunes was reportedly under consideration for secretary of agriculture in the days after Trump’s surprise Nov. 8 election, but his name hasn’t been heard as much in recent days.

The favorite for the job may now be former Georgia Gov. Sonny Perdue, who recently met with Trump about the position. Perdue, like Nunes, is often skeptical of heavy environmental regulation and comes from a state that has often balked at global warming activism.

Cap-and-trade spending deal reached

Good morning. Welcome to the first day of September and the morning after the last day of legislative session. While the last day was tamer than some years past, the whole thing didn’t slip by without some big actions.

For example, Gov. Jerry Brown and legislators reached an agreement on Wednesday on what to do with around a billion dollars of cap-and-trade revenue.

The deal was announced earlier in the day and was approved by dinner after a longstanding battle between legislative leadership, who had a long list of ways to spend the money, and Brown, who had yet to give his blessing.

“California’s combating climate change on all fronts and this plan gets us the most bang for the buck,” Brown said in a statement when the deal was announced. “It directs hundreds of millions where it’s needed most – to help disadvantaged communities, curb dangerous super pollutants and cut petroleum use – while saving some for the future.” 

The spending plan comes at an interesting time for the cap-and-trade program, as the last two quarterly auctions have fallen flat, greatly missing revenue targets, and the program itself faces legal challenges as opponents argue it’s an illegal tax.

CalWatchdog has more. 

In other news:

• Legislators paid awkward tribute to one of their brethren who is under a restraining order for allegedly beating his wife, with one noting how “proud” she was of his ability to walk through the backlash. CalWatchdog has more.
• The Los Angeles Times puts a cap on the two-year session with the biggest wins and losses.
• “Offering a ray of hope in the struggle to save a tiny fish enmeshed in California’s water disputes, state officials say they have found a way to move around river water to produce more food for hungry or starving Delta smelt,” writes The San Jose Mercury News. 
• “Controversy around displaying the confederate flag has hit Fresno where an artist says he’s being unfairly banned from showing a painting at the county fair,” according to Capital Public Radio.
• “Legislation to overhaul California’s public utilities regulator stalled in the final hours of the legislative session as its backer said the Senate Republican leader blocked a vote,” writes The Sacramento Bee. 

Legislature: 

• Gone ’til December. It’s all politics now, writes The Sacramento Bee. 

Gov. Brown:

• No public events announced.

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Sitting state senator passes

Sad news today: State Sen. Sharon Runner has died.

The Lancaster Republican has battled health issues for sometime, having survived a double lung transplant in recent years. She announced earlier this year that she would not run for re-election.

“Sharon Runner’s life was one of service,” California Republican Party Chairman Jim Brulte told The Sacramento Bee. “Whether it was establishing a Christian day school to help educate children, serving first in the California State Assembly and then in the California State Senate, or fighting for initiatives to protect families in California – Sharon was committed to the people of her community and our great state.”

• After shooting an unarmed teenager last month, Fresno PD took a rare step Wednesday by releasing body camera footage of the incident. The Los Angeles Times has more. 
• Newly uncovered court documents allege Sacramento County Sheriff Scott Jones — a Republican who is challenging Rep. Ami Bera, R-Elk Grove, for his seat in Congress — made unwanted sexual advances toward a subordinate. The Sacramento Bee has more.   
• Sending a 550-person delegation to Ohio for the Republican National Convention is neither easy nor cheap, reports Capital Public Radio. 
• “Last week, a coalition of California Central Valley water districts sued the Bureau of Reclamation in the latest installment of the litigation wars over the delta smelt.  The new lawsuit, filed in federal district court in Fresno, and coming on the heels of the Governor Brown administration’s announcement to release an additional annual 200,000 acre-feet of water for the smelt, challenges the Bureau’s recent issuance of an environmental impact statement purportedly assessing the effects that the smelt-inspired water cutbacks have had on the San Joaquin Valley,” writes the Pacific Legal Foundation.

Legislature:

• Gone ’til August

Gov. Brown:

• On vacation

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Hard targets

Water suppliers braced for fines in areas where consumption didn’t hit aggressive targets set by Gov. Jerry Brown. As the Los Angeles Times noted, “16 water suppliers missed their conservation targets by 15 or more percentage points and will be contacted by water officials for an explanation, as well as corrective actions, within the next two weeks,” according to officials.

Californians have made strenuous efforts to comply. “Data released by the State Water Resources Control Board showed that Californians had reduced their water consumption by 59 billion gallons compared with June 2013, indicating what officials called a fundamental change in water-use habits,” the Times added.

But that hasn’t stopped regulators from pushing harder to ferret out the offenders. At a new website, savewater.ca.gov, Golden Staters can snitch on their neighbors with “details and photos of water waste,” the Associated Press reported. “Complaints are then sent to local government agencies based on the address of the offense.”

A reversal in court

Water guzzlers have more to fear than new websites, however. Farmers hit by tightened taps recently faced another setback as relief they sought from regulators was rejected in court. “In a closely watched case with statewide implications, a Sacramento Superior Court judge declined a request by the West Side Irrigation District, a small agency in the Delta, for a preliminary injunction that would have reined in the State Water Resources Control Board. The state board is pursuing fines and other enforcement actions against West Side and a few other water districts over allegations of illegal pumping,” the Sacramento Bee noted.

The decision served to put farmers and suppliers on notice that water policing would increase. Already, the Water Board “has sent thousands of letters to farmers, water districts and corporations holding rights to divert water from rivers and streams,” the Associated Press observed, indicating “supplies were running too low in the fourth year of drought to meet demand.”

Punishments could be severe. “Suppliers that repeatedly fail to meet their savings targets could face fines of as much as $10,000 a day,” according to the Times. Although the West Side District had the option of begging for mercy before the Board, its lawyers doubted the possibility of a fair hearing, the Bee reported.

Environmental fines

In addition to heavy use, water regulators have also indicated their willingness to crack down on environmental accidents. In the wake of the Refugio State Beach oil spill, the Central Coast Regional Water Quality Control Board asked Attorney General Kamala Harris to consider “penalties of up to $25,000 per day of violation, plus $25 for every gallon of oil spilled” for the pipeline’s owners, according to Yahoo News.

“‘The Water Board will work closely with the Attorney General’s office to make sure all those responsible for the Refugio spill face the strongest enforcement measures allowed by law,’ Board Chair Jean-Pierre Wolff said in a news release.”

But regulators confronted an uphill battle to stave off environmental damage in drought conditions. California’s water woes have taken a harsh toll on the Delta smelt, a tiny fish that has long been the bane of area farmers who can’t tap its waters without running afoul of state and federal rules.

“The silvery, finger-sized fish has been in trouble for years, but the four-year drought is helping to push the smelt to the brink of extinction,” the AP reported. “In July, a key index of delta smelt abundance hit zero for the first time since the survey began in 1959. Researchers found a handful of smelt, but the number was too small to register on the population gauge.” Farmers have argued that too much fresh water has been lost trying to keep the fish’s population numbers robust.

David Prasad / flickr

Last week, House Republicans introduced legislation to revise water policies in California and the rest of the West Coast, improving water reliability and making environmental laws more flexible.

H.R. 2898, authored by California Congressman David Valadao, is backed by the entire California Republican delegation. Titled the “Western Water and American Food Security Act of 2015,” the bill, according to Rep. Valadao’s website, “aims to make more water available to families, farmers, and communities in California and bordering Western states.” The legislation also makes it easier for federal regulators to authorize projects that will increase water capture during periods of greater precipitation, and begin projects that have already been authorized for more than a decade.

“California’s drought has devastated communities throughout the Central Valley and now the consequences are extending throughout the country. Inaction will result in the collapse of our domestic food supply,” Rep. Valadao said in a prepared statement. “Congress cannot make it rain but we can enact policies that expand our water infrastructure, allow for more water conveyance, and utilize legitimate science to ensure a reliable water supply for farmers and families.”

Water agencies throughout the Central Valley also voiced their support for H.R. 2898. Michael Stearns, chairman at the San Luis and Delta-Mendota Water Authority, said he was “heartened by the introduction” of the bill, as it would “provide much needed relief for the people, businesses, and communities” serviced by water agencies.

“Our people are desperate,” said Eric Borba, chair at the Friant Water Authority. “We need solutions that will provide real water for our area, and we need them now.” Many of the Central Valley water agencies considered the bill to be a vital first step in finding solutions and enacting legislation to aid impacted communities in California.

Despite widespread support for the bill, House Republicans are still expecting much backlash from both the Senate and Obama Administration.

House Majority Leader Kevin McCarthy said in a release that, for years, he had offered and supported many solutions that passed the House but were not enacted into law. “This action is unacceptable,” he said, and deemed it imperative to sign into law a water bill “that rebalances the priorities between fish and people and delivers water that our communities have contracted and paid for.”

Text in the bill authorizes “operational flexibility in times of drought” as well as “flexibility for export/inflow ratio.” The legislation also includes mandates for “new science” to be used in the management of endangered fish, such as the Delta smelt.

But these very allocations are drawing resistance from House Democrats and their Senate colleagues. San Rafael Democratic Rep. Jared Huffman summed up the proposal as a “blame the fish” initiative backed by agri-business. According to the Press Democrat, H.R. 2898 would weaken environmental protection by diverting more water from the Delta into Central Valley aqueducts and scrap restoration plans for the San Joaquin River.

Rep. Huffman has drafted an alternative to Valadao’s legislation, which includes $1.4 billion in emergency funding to deploy efficient irrigation technology, drill new wells and build new pipelines. The plan also allocated money for “water recycling, reclamation and storm water capture projects, cleanup of contaminated groundwater, watershed protection, efforts to limit evaporation from reservoirs and canals, a Justice Department crackdown on water theft for marijuana cultivation and an expanded X-prize to promote development of new desalination technologies.”

The proposal has not yet been introduced in the House. H.R. 2898 has since been referred to the committees on Natural Resources and Agriculture.

The funds come from California’s $7.5 billion Proposition 1 Water Bond, approved by the voters last year.

Although it is unlikely that all of the $287.5 million will be used for water purchases to benefit the environment, the Wildlife Conservation Board and the Department of Fish and Wildlife still have yet to determine what they will do with their respective $200 million and $87.5 million bond funding allocations.

The last time California tried a pilot program of purchases of environmental water, it didn’t work out so well.

Interest adds up

Starting in 2000, state and federal water agencies purchased farm water for fish and wildlife using bond funds under a now-defunct state-federal program called CALFED. The Environmental Water Account project was aimed at improving water supply reliability and protecting the Delta ecosystem.

The project followed a major allocation by Congress in 1991: a one-time allotment of 800,000 acre-feet for salmon runs plus another 400,000 acre-feet annually for wildlife refuges without payment for the water. (See page 15). An acre-foot of water – enough to cover one acre of land to a depth of one foot – can supply two to four urban households per year, depending on whether it is a normal or drought year. That same amount can support about one-third an acre of cropland per year.

The use of general obligation bonds to buy water for the environment is controversial because actual financing costs would typically be double the principal amount once interest is included.

Calwatchdog.com spoke with Wes Strickland, a water rights attorney in California and Austin, Texas, about the results of the EWA project. Strickland said EWA was a lose-lose-lose-lose deal for every group involved:

• For environmentalists it did not allocate enough water to alleviate ecosystem stress.
• For farmers it drove up spot market water prices because of reduced supply.
• Southern California cities were thwarted from buying water to bank for dry years.
• State and federal water agencies didn’t accomplish their environmental goals even as the state ran up its budget deficit and exhausted water reserves going into a 2007-2010 court-ordered limit on water pumping.

From this failed experiment, Strickland said California should have learned to make small, incremental water purchases during rainy years to support the environment during years of drought.

$193.4 million

The state and federal taxpayer bill came to $193.4 million for the EWA project, which lasted from 2000 to 2007. More than 2 million acre-feet of water were purchased for environmental uses. (See table below.) According to the California Department of Water Resources:

• $16.8 million came from Proposition 204, a 1996-voter approved state water bond.
• $101.2 million was from Proposition 50 voter-approved state water bond.
• $50.1 million was from the state general fund in 2001.
• $25.3 million came from federal coffers.

Under the program, the government came to dominate the spot market for water.

On average, water purchases under the program made up 43 percent of all spot-market purchases of water each year. By the final year of the program, the government’s purchases comprised 87 percent of all water bought on the spot market.

The average price of water purchased over the seven years was $96 per acre-foot, without bond interest, compared with the current going price of $700 per acre-foot for water transfers from farmers.

At the lower price, the $287.5 million under Prop. 1 would be enough to purchase about 3 million acre-feet of water. As the table below shows, in 2007 California bought 477,000 acre-feet of water for fish runs, and that was deemed insufficient to help migrating fish get to the ocean.

Will there be any water to buy?

Because Lake Oroville has been drawn down below 50 percent of its storage capacity, water cannot be sold by the farmers along the Feather River, which flows into the lake.

The EWA project ended just before the Natural Resources Defense Council filed suit to protect the Delta smelt, prompting court-ordered limits on the amount of water drawn from the fish’s habitat.

Environmental Water Account Purchases, 2001 to 2007

###

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

Are babies being damaged by too much perchlorate in the water? Should the amount be reduced by a mouthful of a bureaucracy, the Office of Environmental Health Hazard Assessment, part of the California Environmental Protection Agency?

New regulations could cost Californians billions as the state finally is rising from a deep three-year economic recession. Moreover, according to reputable scientists, there are no proven health benefits from reducing the level of perchlorate in drinking water from an infinitesimal 6 parts per billion to 1 part per billion, as proposed by OEHHA.  The science behind the OEHHA’s proposed new standard smacks of the recent scandal in the Delta Smelt court case.

Repeating the Delta Smelt Case?

From 2007 to 2010, water agencies such as the Metropolitan Water District of Southern California jacked up water rates by about 34 percent due to a court-ordered drought to protect a fish in the Sacramento Delta. But federal Judge Oliver Wanger eventually found that the environmental science on which the case was based was bogus and the government scientists were “zealots.” None of the water agencies across the state repealed their rate hikes — even though the drought was contrived. Water ratepayers are still not laughing.  In fact, they didn’t even get the joke. They just got stuck with a higher water bill.

And now the California OEHHA wants to lower the level of perchlorate in drinking water from 6 parts per billion (ppb) down to 1 ppb.  That is equivalent to one drop of water in an Olympic size swimming pool. But this is what might be called “dark humor.”

As Bill Romanelli of the Perchlorate Information Bureau wrote to me in an email: “The real issue on this is that given that there are no public health benefits in going from 6 ppb down to 1 ppb, it’s an unjustifiable expense regardless of the ‘solution.’  Drilling further down, the problem is one of cost.  The stricter the standard, the more ‘clean’ water is needed to dilute the supply, and the costs can go up geometrically (and will be borne by customers).”

Like California’s contrived court-ordered drought, reputable scientists are saying the new perchlorate standard is scientifically indefensible. Dr. Richard Pleus, toxicologist and managing director of Intertox consulting in Seattle and adjunct professor in the Department of Pharmacology at the University of Nebraska Medical Center, wrote in an email to me, “The [scientific] record demonstrates that, in over 60 years of research, no study has reported adverse effects on human health with exposure to environmental levels of perchlorate.”

But will water agencies have to build costly new treatment plants to comply with this new standard, only to find out much later that the scientific basis of the new rule is bogus? This is what happened in California’s infamous “wet” drought.

Perchlorate does not cause cancer, nor is it a poison.  Perchlorate is suspected to cause a nutritional deficiency of iodine in the fetus and infants. The perchlorate compound is roughly the same shape and has the same negative chemical electric charge as iodine (iodide).  Thus, perchlorate is believed to be capable of blocking absorption of iodine in the thyroid gland.  Iodine is needed for natural growth and educational development and can be obtained from fish and other foods.  Perchlorate occurs naturally. And it is industrially added to fireworks, solid rocket fuels and road flares as a booster because it is oxygen rich.

Perchlorate has been selected for regulation partly because it has an image of “rocket fuel.” And the deep pockets of industries can be made to pay mega millions to clean up groundwater basins without any direct cost to taxpayers or drain on the state budget.  But products such as soy that have a “green” image and no deep pockets haven’t been regulated. Neither have products that have a “home made by mom” image such as breads with bromide.  Yet industrial perchlorate is the perfect target for regulators.

The Bureaucratic Vetting Process

In California, the approval of a Minimum Contaminant Level (MCL) for an environmental substance goes through a 10-step process before being adopted into law.  The first five steps involve internal scrutiny by the California Environmental Protection Agency. The five steps follow the administrative departments dealing with regulations, budget, finance, health, and law must put the law on the books.

Once approved, the rule is published in the California Regulatory Notice Register.  The publication signals the start of a 45-day comment period.

Once the comments have been received, an additional 15-day public comment period is held before the final rule is drafted for review by the director of the California EPA.  If the rule is signed, there is a 30-day review by the Office of Administrative Law.

If the new rule advances that far, it is then filed with the Secretary of State and is enacted into law in 30 days.

California is presently in the process of reviewing comments and undertaking a scientific peer review before forwarding the new rule to the head of the state EPA.

Bureaucratic Kangaroo Court?

But unlike the Delta Smelt case, there will be no impartial judge, no evidence code to comply with and no cross-examination. Instead there will be public comments and a peer review by a panel of scientists hand-picked by the OEHHA bureaucrats.  Unlike picking a jury, there will be no way to challenge the selection of a peer reviewer.

The peer reviewers are not peers drawn from the community, as in done in court juries. The OEHHA has picked them from other states.

The bureaucratic review process is not democratic.  There are no checks and balances in the review process.  The governor can’t veto an adopted new standard.  A lawsuit to strike down an environmental regulation as unconstitutional would be difficult and costly.

The Lockheed and Kerr McGee corporations sued OEHHA in 2002 by claiming that they were legally entitled to a second scientific peer review of the perchlorate level proposed at that time.  The judge in the case ruled that the two firms’ request for a second opinion was valid and ordered such.

The Proponents and the Opponents

In favor of more costly and unrealistic standards are: Clean Water Action, the Environmental Working Group, National Resources Defense Council and Citizens for Safe Water.

The NRDC is the same organization that filed the 2006 lawsuit in California to protect the Delta Smelt fish based on bogus science. Teresa Heinz Kerry, former senator and the wife of Sen. John Kerry, D-Mass., has provided past funding for the Environmental Working Group.  Clean Water Action is a group of self-described activists, lobbyists and community organizers in San Francisco.

Opposed to more costly and unrealistic new standards are: the Association of California Water Agencies, the East Bay Municipal Water District, the Riverside Public Utilities Department, San Bernardino County, Golden State Water Co., the Perchlorate Study Group, the Partnership for Sound Science and Environmental Policy, the U.S. Department of Defense, numerous agricultural associations, Health Risk Strategies consulting and Exponent Science and Technology Consulting.

Ask yourself whom you trust the most: your local water agency, which is accountable to you to keep water rates low — or activists, lobbyists, and community organizers?

Who Are the Science Peer Reviewers?

None of the three science peer reviewers was asked to evaluate the costs versus the benefits of reducing the level of perchlorate in drinking water.  Their review was confined to strictly narrow scientific and statistical issues concerning the proposed 1 ppb new standard for perchlorate in drinking water.

All three of the science peer reviewers are well qualified. None of them can be characterized as “zealots,” as were the scientists in the Delta Smelt case.

But why OEHHA picked three out-of-state science peer reviewers, when there are so many equally or more qualified scientists in California, is a question. The three peer reviewers selected by the OEHHA are:

* Dr. Andrea Kirk, PhD., professor of environmental health at North Texas University.  Dr. Kirk has made $470,426 from research grants mainly on studying perchlorate levels in breast milk.  Her science peer review of OEHHA’s new rule can be found here.

* David Rich, Sc.D., MPH, is a professor at the Department of Community and Preventive Medicine at the University of Rochester Medical Center in New York.  His principal focus of research has been on strokes, diabetes and growth defects in the unborn triggered by air pollution.  Rich’s one science paper on perchlorate was co-authored with eleven other researchers. It found no evidence of lack of iodine (iodide) or deficiencies in weight, length, or head size in newborns due to perchlorate.  I couldn’t find where Dr. Rich mentioned this in his peer review of OEHHA’s new perchlorate standard.  Rich’s science review of the OEHHA new rule can be found here.

* Stephen H. Lafranchi, M.D., is a baby doctor and professor at the Oregon Health and Science University. It might be questioned why a medical practitioner was selected.  His science review of OEHHA’s new rule can be found here. 

None of the peer reviewers was asked to indicate whether perchlorate is more or less a health threat to the unborn and infants than such foods as soy, broccoli, Brussels sprouts and bromate in bread, all known also to block iodine absorption.

Neither were the researchers asked to indicate whether reducing the level of perchlorate in drinking water from 6 ppb to 1 ppb would result in demonstrably greater health benefits to vulnerable subpopulations, other than mere statistical projections.

The reviewers were also not asked whether it would be more effective to reduce perchlorate to 1 ppb in drinking water by costly treatment methods, instead of just ingesting added iodine by eating cheap iodized salt, as has been done for decades.  To answer this question might pose a threat to the livelihoods of perchlorate scientists and the public health bureaucracies that regulate it.

Iodine Supplements

The U.S. EPA’s Office of Inspector General essentially stated in a 2010 scientific analysis of perchlorate that ensuring proper prenatal supplementation of iodine in pregnant women, rather than individual chemicals, was the best approach.

The reviewers were not asked if there could be what is called a “confounding variable” — alcohol consumption during pregnancy — that could be a contributing cause of retarding or intellectual deficits in children.  Statistics don’t separate out mothers who alcohol drinkers from non-drinkers; or healthy babies from those born with congenital defects.

Most of the perchlorate studies involve measuring iodine or perchlorate levels in milk or blood, or perchlorate levels in drinking water.  There never has been a long-term comparison and control study of whether educational deficits in children significantly decreased in a community that has reduced perchlorate levels in its drinking water.

All the past cleanups of perchlorate in drinking water have focused on underground water basins where perchlorate gets trapped. Perchlorate on the ground surface can get diluted by rain and rendered relatively harmless.  Contaminated water from a well mixed with uncontaminated water in pipelines can be diluted to an acceptable level. As the old saying has it, “The solution to pollution is dilution.”  That is, unless you move the acceptable level of perchlorate to near zero, which is what the OEHHA is proposing.

Intertox: No Scientific Basis to New Rule

Intertox, a scientific consulting firm in Seattle specializing in toxic exposures, prepared scientific comments to OEHHA’s new perchlorate standard for the Environmental Study Group.  The Environmental Study Group is an association of industries that have been subject to perchlorate regulation. On its website, Intertox lists that it has worked on both sides of environmental risk assessments — both for the government and for defendants in toxic lawsuits.

Intertox is especially well qualified with perchlorate safety standards.  Intertox experts co-authored the definitive study assessing health risk exposure to perchlorate.  Intertox’s comments to OEHHA’s new rule is here.

Intertox states that reducing the level of perchlorate in drinking water from 6 ppb to 1 ppb is “unlikely to have a public health benefit.”  Intertox additionally concludes that perchlorate, a natural substance, can’t be compared to other potentially toxic substances such as mercury, beryllium, nickel and simazine.

Instead, perchlorate should be compared with other food substances that can block iodine absorption in young children such as soy, broccoli, Brussels sprouts and bromide in bread.

Intertox concluded that the most vulnerable population segment to perchlorate exposure — pregnant women and their babies — were protected under the existing standard by a factor of three times what would be considered safe.  The new standard would increase the safety factor to 10 times the safety level, without proven reductions in birth defects or educational deficits.

The California OEHHA’s own document, “Public Health Goals for Chemicals in Drinking Water — Perchlorate,” dated March 2004, states that there is no scientific justification for increasing the safety margin from 3 to 10 times the safe level for infants (p. 86).

Who Will Be Affected?

As shown in the table below, it will mainly be Southern California that will be affected by reducing the Maximum Contaminant Level (MCL) of perchlorate in drinking water from 6 ppb to 1 ppb.

Active and Standby Sources with Perchlorate Detections — 2002 to 2007

A 2005 study conducted by the National Academy of Science concluded that perchlorate in drinking water below 245 ppb does not have a measurable effect on human health.

None of the drinking water sources or systems shown in the table above is close to the threshold of 245 ppb.  The lowest is 5.4 ppb and the highest is 100 ppb, with an average of 40.1 ppb.

The level of perchlorate in the Colorado River Aqueduct is about 6 ppb.  The Colorado River Aqueduct serves all of Southern California.  This massive system would now need to construct costly treatment plants to remove perchlorate.

A 2004 study conducted by Kennedy/Jenks Consultants indicated that the cost to comply with a lower Public Health Goal (PHG) of 4 ppb of perchlorate from water wells would be from $1 billion to $2.2 billion over 20 years.  The cost to reduce perchlorate to a level of 1 ppb.  Nor was the cost to treat Colorado River Aqueduct water included.

You’re Next

If the safety level for perchlorate is dropped to 1 ppb, it likely won’t be just single-point sources of perchlorate, such as water basins, that will be targeted.  It is likely that fertilizer in home lawns that contain nitrates will eventually be the next target for regulation. Nitrates are also suspected as a potential blocker of endocrine glands. Say goodbye to your lawn and rose garden.  You may be added to the list of “baby killers or retarders.”

A Ph.D., thesis in 2008 titled “Nonpoint Sources of Nitrate and Perchlorate in Urban Land Use to Groundwater: Suffolk County, New York,” found low-level sources of perchlorate in lawns, sewage systems, turf grass and road runoff.  If acceptable perchlorate levels are going to be reduced to 1 ppb in drinking water, it won’t be long before homeowners will also be regulated.

A Matter of Cultural Values, Not Science

Environmental scientist William Cooper has asked the question, “What does it mean to reduce the level of some potential contaminant to effectively zero?”  His answer is not solely a scientific issue, but one of cultural values and what is acceptable risk.

Paraphrasing Cooper:  “Is the cup half empty or half full?  You can view the existing 6 ppb standard as a ‘license to kill’ or as regulatory overkill. What you will find that you do risk assessment for human health is that it is halfway between black magic and a Ouija board.  It basically comes down to common sense and judgment.  You cannot print money fast enough to solve all the environmental problems to the level of zero risk.”

Science has evolved to be able to measure substances that heretofore were undetectable at infinitesimally low levels. But science is not mere measurement.  Nor is it the ability to make statistical predictions that are not validated in the empirical world.  There is too much measurement and statistical projection and no valid evidence anywhere in the scientific record, or otherwise, of adverse effects from low doses of perchlorate.

How did a dietary and nutritional problem of mostly pregnant mothers and infants morph into a huge scientific and water treatment industry that proverbially strains at gnats — parts per billion of perchlorate in drinking water — but ignores swallowing a camel — alcohol consumption during pregnancy or other food substances?  Why is it science to measure the amount of perchlorate in drinking water approaching a zero limit and its statistical probability, while avoiding the monitoring of the actual number of children with retardation or educational deficits exposed to perchlorate in the real world?  Has “regulatory science” become a substitute for real science?

The uncertainty factor in minute low dosages of any environmental substance is bound to be high.  Common sense dictates that marginally lowering perchlorate levels from 6 ppb to 1 ppb won’t result in demonstrable health benefits.  If lowering perchlorate to a near zero level is a cultural value, then why do we entrust this decision to a bureaucracy that, like all bureaucracies, can be self-serving?

Perchlorate wasn’t “discovered” in California until about 1985.  Most of the major contamination sites are already in the process of being cleaned up.  What are left are the low-level sites. In a time when the governor is downsizing state agencies and the state budget has been running deficits, is it beyond questioning whether the OEHHA’s actions are a protection of bureaucratic turf more than public health?  Can government bureaucracies just unilaterally impose costs on private industries without any proven health benefit?  Where are the checks and balances to expansionist government bureaucracies?

Elite vs. Mass Politics

This is why nearly anything having to do with environmental regulation in California reflects elitist politics. There are little to no checks on the power of agencies regulating the environment.  There is no ballot initiative that could invalidate the OEHHA’s standard to reflect the “will of the people.”  The courts have not provided an adequate check and balance to expansionist policies of government bureaucracies.

If the Howard Jarvis Taxpayers Association reflects mass politics, the OEHHA reflects elite politics. That is why California’s environmental agencies, regulations and projects often are the playground for elites and the politically well connected.

The Fable of the Bear and the Hunter

At the end of David Woodbury’s novel, “You’re Next on the List: A Satire on Modern Bureaucracy,” is the following fable:

“Once upon a time a hunter cornered a bear in the wilderness and took careful aim at close range.  Just before he was about to pull the trigger, the bear held up a paw and said: ‘Wait a minute, Mr. Hunter, there’s no reason you and I can’t negotiate this matter and coexist peacefully. After all, you want a fur coat and all I want is a full stomach.  So let’s sit down and talk it over.’

“Being a typical American who knows there’s nothing to be hurt by sitting down and talking things over, the hunter agreed. So they sat down and negotiated. And both did get what they wanted. The bear got a full stomach and the hunter got a fur coat.”

Moral: You can’t negotiate with the California Bear about the nutritional standard of bears of 1 ppb — one person per bite — that is based on the bear’s self interest, not science.