By Wayne Lusvardi

Mark Twain once wrote: “Don’t tell fish stories where people know you; but particularly, don’t tell them where they know the fish.”

The farmers in the California Central Valley know that environmentalists have been making up a big fish story for quite some time about agricultural water contracts negatively impacting the purportedly endangered Delta smelt fish.

The farmers know the fish better than the environmentalists.  You can’t tell any big whopper fish stories around farmers.  But you can try to get away with them in court.   But even a liberal court didn’t fall for such yarns.

The liberal U.S. 9th Circuit Court of Appeals ruled Tuesday that 41 federal water contracts in the Central Valley Water Project did not violate the Endangered Species Act.  Chief Judge Procter Hug ruled in the case, National Resources Defense Council vs. Ken Salazar, Secretary of the U.S. Department of the Interior, that the U.S. Bureau of Reclamation did not have to consult with the Fish and Wildlife Service over any alleged negative impacts to the purported endangered Delta smelt fish in renewals of agricultural water contracts.

According to Brandon Middleton, attorney for the Pacific Legal Foundation, Section 7 of the Endangered Species Act requires federal agencies to consult with the Fish and Wildlife Service before undertaking an action that may negatively affect a protected species.  Relying on legal precedent, Hug ruled that Section 7 only applies to discretionary federal actions.  Because prevailing law mandates the renewals of water contracts, the bureau had no obligation to consult with the Fish and Wildlife Agency.

To further squash this big fish tale, the court also ruled the environmentalists had no legal standing to even challenged the water contracts on such grounds.  Standing is defined as: “the ability of a party to demonstrate to the court sufficient connection to and harm from the law of action challenged to support that party’s participation in the case.” The water contracts in question even contained a “shortage” clause that provided for the Bureau of Reclamation to provide more water for the smelt.

Middleton said, “The farmers had much to lose even though they didn’t gain that much in this ruling.”  If the ruling had gone against the water contractors, farmers might have had to give up water already under contract and on which agricultural production loans and other financial obligations had been made without any re-compensation.  Middleton elaborated that, what the environmentalists were trying to do was go beyond challenging any physical impacts on the smelt by large pumps in the Delta as part of the Federal Central Valley Project.  The environmentalists wanted to penetrate to the legal contracts that lay behind the water pumping.

No Bearing on Repealing Feinstein’s Water Grab Act

However, Middleton doubted this ruling would have any bearing on the provision in Democratic Calif. Sen. Dianne Feinstein’s H.R. 146, the San Joaquin River Restoration Act of 2009, to “mandate” agricultural water contractors to go through an environmental clearance process as a condition of renewing their long-term water contracts.  Such a clearance could permit the environmental mitigation shakedowns of farmers.

Feinstein’s act was a grab of water from Central Valley farmers for commercial fishing, recreational and real estate development interests in the San Joaquin Valley area.  Feinstein’s Democratic Party controlled both houses of Congress and the presidency in 2009.  Nevertheless, she could not overcome the farm lobby in Congress in her own party to get the San Joaquin River Restoration Act passed.  Eventually, Feinstein’s bill was attached as a “rider” on the Omnibus Lands Act of 2009 and ramrodded over opposition in her own party.

Recently, Rep. Devin Nunes, R-Tulare, authored H.R. 1837, the San Joaquin Valley Water Reliability Act, to repeal Feinstein’s one-sided law. The bill is still sitting in the U.S. Senate, where it has been blocked by Feinstein and Sen. Barbara Boxer, D-Calif., and opposed by Pres. Obama.

Farmers know that, if it weren’t for the Central Valley Water Project providing water to agricultural water districts, the Delta smelt fish wouldn’t have as much reliable water or habitat.  And that is no fish story.

Editor’s note: For clarity, this article has been modified to include an excerpt from the letter by Robert Pyke. 

June 11, 2012

By Wayne Lusvardi

Should we save the endangered red herring fish in California’s San Joaquin River?

The question is meant to fool you.  Herring is a saltwater fish not found off the coast of California or in the fresh waters of the San Joaquin River.

A red herring is a fish that has a reddish color after being been dried and smoked.  It has such a foul smell that in Hollywood movies red herrings were used by escaped jailbirds to mislead hound dogs that were tracking them. The term “red herring” today is used to describe anything that is misleading or distracting from the central issue.

And that is what the issue about restoring Chinook salmon in California’s San Joaquin River is all about: a red herring meant to draw attention away from the central issue about the sham restoration of the San Joaquin River.

The San Joaquin is Central California’s largest river. It starts in the Sierra Nevada mountain range, flows through the San Joaquin Valley, then ultimately into the San Francisco Bay and the Pacific Ocean. It flows through or near Clovis, Fresno, Madera, Turlock, Modesto, Stockton and the Sacramento Delta on its way to the Bay. It is heavily dammed to prevent flooding in the Central Valley. The river has not flowed naturally since the Friant Dam was built in the 1940s.  Its flows have been so drastically reduced to prevent the Delta from becoming a periodic “inland sea” that salmon no longer exist in the river.

Rep. Denham Delays Restoring Salmon in San Joaquin River

On June 5, the U.S. House of Representatives approved an amendment by U.S. Congressman Jeff Denham, R-Turlock, to H.R. 5325, the Energy and Water Related Agencies Appropriation Act of 2013. It would prohibit the premature introduction of salmon into an inadequate San Joaquin River system.

Without full restoration of the flows of the river, the salmon could not migrate from the ocean to upstream spawning pools.

Blogger Doug Obegi at the National Resources Defense Council’s Switchboard website seized on the House’s action to accuse Denham of trying to undo the court approved settlement to restore the San Joaquin River for salmon runs.

As Mike Wade of the Farm Water Coalition responded:

“[Obegi’s] criticism of Rep. Denham’s amendment and claiming the SJR Exchange Contractors are reneging on the river restoration settlement are efforts to mislead public opinion without providing all of the facts. The restoration agreement provided protection for third parties along the river, including farmers within the Exchange Contractors’ region. Past efforts have already seen these farmers suffer from undue seepage problems caused by high water releases into the river. The agreement also called for multiple construction projects and it was acknowledged that early introduction of salmon a year or two before the completion of the projects might take place; but none of the necessary construction projects needed for a successful fish passage have begun. It could be 5-10 years or more to reach completion of the Phase 1 projects once construction begins, depending on funding. Why introduce salmon that are listed as endangered that stand no chance of reaching the ocean? 

There is not much to be shown for the $100 million already expended for the restoration. Those groups pushing for the salmon introduction insisted that the restoration effort could be accomplished for $250 million. It is readily recognized that this number will fall far short of the amount required. Now is not the time to compound this oversight with efforts such as early introduction of salmon that serve no purpose.” 

Thus far, $70 million has been spent on San Joaquin River restoration mainly on environmental studies with nothing to show for it. No physical improvements have been made to bring about restored salmon runs in the San Joaquin River.  That’s $70 million that might as well have been flushed down the proverbial toilet to run to the sea.

This is one reason why California has spent $18.7 billion on five water bonds (Propositions 12, 13, 40, 50 and 84) since 2000 and has no added water to show for it.  Instead, the bond monies have gone for open space acquisitions, greenscaping and environmental studies around upscale residential enclaves.

Using the “red herring” distraction of alleged obstructionism by Denham, Obegi is trying to shift the public’s attention away from the squandering of public funds on environmental studies with nothing to show for it.

Where is Water for River Restoration Coming From?

This begs the question: where is the water for restoring salmon runs in the San Joaquin River coming from?  It is coming from U.S. Senator Dianne Feinstein’s H.R. 146, the San Joaquin River Restoration Act, sponsored by Rep. Rush Holt, D-N.J. It was passed as part of the Omnibus Lands Act of 2009 when Democrats had a supermajority in Congress and the presidency.

Feinstein’s bill took contracted water from Central Valley farmers to restore salmon runs along the San Joaquin River.  It also hiked federal water contract rates for farmers to pay for the restoration. And it subjected farmers to paying environmental mitigations to commercial fishing, recreational and real estate development interests in Northern California when their water contracts are due.  The farmers not only had water taken from them, but would have to pay for a gigantic $1 billion redevelopment scheme for the San Joaquin River cloaked as a salmon restoration project.

After Republicans took back control of the House in 2010, Republican Rep. Devin Nunes of Tulare authored H.R. 1837, the San Joaquin Valley Water Reliability Act, to repeal Feinstein’s water grab.  H.R. 1837 was folded into Utah Senator Orrin Hatch’s “The West Act,” which has been blocked in the U.S. Senate by Feinstein and Sen. Barbara Boxer, D-Calif.

This is the problem of not obtaining true “consent of the governed” — in this case, those who have to pay for such schemes; or of not relying on voluntary market transactions.  Without voluntary consent of those taxed or a market transaction, what happens is an endless “water war.”  This is tragic, as an engineer has recently revealed that the Sacramento Delta has too much water in wet years.

Northern Cal Water in Wet Years

Robert Pyke, a geological engineer, recently wrote an interesting letter to Ken Salazar, the secretary of the U.S. Department of the Interior, and John Laird, the secretary of the California Natural Resources Agency. Pyke wrote:

“the inherent variability in precipitation in Northern California has not been addressed in the [Bay Delta Conservation Plan] to date. I know that they now talk about taking more water in wet winters and less water in dry winters but that is just talk without there being any mechanism to actually accomplish this. When I met recently with Secretary Laird and suggested that what was needed was a plumbing system that allowed the extraction of up to 8-10 million acre feet in wet winters to make up for the fact that you can’t take more than 2-4 million acre feet in dry winters, he said that he had never heard anyone suggest that previously. Maybe so, but that is indicative of a problem.”

Now, 8 to 10 million acre-feet excess water in wet winters is enough water to serve 8 million urban people per year over a five-year drought; or irrigate 533,000 acres of farmland per year over a five-year dry spell.

But the present conveyance system, the California Aqueduct, cannot take more than 2 to 4 million acre-feet per year.  Thus, there is need of a new, larger conveyance system — a so-called Peripheral Canal or Delta Tunnels — to convey the excess water out of the Delta during wet years, to farmers and cities which then can store it dry-year usage.

By taking the excess water during wet years from the Delta, the threat of flooding and of an earthquake breaching heavily flooded levees would be reduced.

So environmentalists continue to shake down farmers in the Central Valley for contracted water and higher water rates to pay for a $1 billion water-related redevelopment scheme along the San Joaquin River.  But they are also opposed to the completion of a Peripheral Canal or Tunnel system that would provide farmers with more water for banking in local groundwater basins during wet years for use in dry years.  Northern Californians and environmentalists want to eat their water cake and have it too!  And they are opposed to any water for farmers and cities in return.

Then they have the nerve to call elected representatives of farming districts “obstructionists” to a one-sided so-called court “settlement” mandating the restoration of the San Joaquin River.

Bad Water Law

As Judge M. Smith wrote in the dissenting opinion in a June 1, 2012 9th Circuit Court of Appeals case, Karuk Indian Tribe vs. U.S. Forest Service, Central Valley farmers will suffer from the impact of “extremist” environmental decisions.  Smith pointed out that, because judges are unelected, they should be limited to interpreting environmental law, not creating de facto new legislation for which they are unaccountable to anybody (see pages 6126-6127 of the case).

Welcome to the wonderful world of California’s water wars, where water flows to the San Joaquin River are to be restored for a fictional endangered Red Herring fish that is a ruse for a $1 billion river-related redevelopment scheme and jobs program for environmentalists.  Environmental disputes are almost never really about preserving some fish or ecological habitat.  They are about wealth effects created from water-related redevelopment for commercial fishing, recreation and tourist lodging and real estate development to be handed out to the politically connected.

By WAYNE LUSVARDI

In California’s historical water wars force and fraud typically prevail during battle. The consent of the governed only emerges when there is a necessity for peace and compromise.

On March 9. U.S. Senator Dianne Feinstein, D-Calif., signaled she would seek a deal rather than keep fighting H.R. 1837. That’s the San Joaquin River Valley Water Reliability Act sponsored by Rep. Devin Nunes, R-Clovis.  HR 1837 would have repealed Feinstein’s three-year-old H.R. 146, the San Joaquin River Restoration Settlement Act of 2009.  Forget the similar sounding titles to these opposing pieces of legislation.

Feinstein’s H.R. 146 took water from Central Valley farmers to redistribute to commercial and recreational fishing interests in the San Joaquin River; raised water rates for Central Valley farmers to subsidize fishing and recreational “restoration”; and required that renewal of agricultural water contracts had to go through an environmental review for distribution of mitigations to special interests.

The Republican-backed H.R. 1837 would undo all this.

The problem that Feinstein faces is that two of her own generals in the Central Valley Water War defected to the enemy Republicans. The defectors are her fellow Democrats Rep. Jim Costa of Fresno and Dennis Cardoza of Atwater), both representing agricultural parts of the Central Valley of California.

And six other Democratic water warriors in the House representing agricultural areas in other states voted for the Republican bill: Jason Altmire of Pennsylvania, Sanford Bishop of Georgia, Dan Boren of Oklahoma, Larry Kissell of North Carolina, Jim Matheson of Utah and Colin Peterson of Minnesota.

Even Democrat Rep. Jason Altmire, who authored the amendment that broke the stalemate on the Omnibus Lands Act of 2009, voted for the Republic-sponsored H.R. 1837.  Feinstein’s H.R. 146 passed in 2009 as a rider bill on the Omnibus Lands Act.

Unsignable Bill Becomes Signable

Up until last week, falsehoods and political posturing mainly framed the issue of the San Joaquin River in the media. And the mainstream newspaper press bit into the water issue literally and figuratively by hook, line, and sinker.

As recently as Feb. 12, Sen. Feinstein twittered that she opposed H.R. 1837.

On Feb. 17, Feinstein and Sen. Barbara Boxer, D-Calif., issued a press release stating, “H.R. 1837’s potential for harm to our state cannot be overstated.” But was it harmful when Feinstein took water from farmers in 2009 under HR 146 to give it to fishing, recreational and real estate interests?

The green Bay Institute wrote on Feb. 29 a bulletin entitled, “It’s Back! Extremists Push Legislation in Congress to Gut the Bay Delta Project.” Hmmm.  Only Republicans are “extremists”?

Dan Bacher, editor of Fish Sniffer Magazine, called H.R. 1837 “the Salmon Extinction Bill.”  No mention was made of what land or water rights — riparian, appropriative or “area of origin” — that fishing interests held to demand environmental mitigations for their supposed losses. They wanted water rights created out of legislation and political favoritism. And Feinstein’s H.R. 146 would have given them water rights for fishing and recreation that would have trumped agriculture even during a drought!

Water Grab

Instead of buying land or water rights, fishing and recreational interests want politicians to give it to them in the name of environmental restoration. Environmentalism is just a cover for California’s water wars.  Feinstein’s HR 146 would have created no new water — just redistributed agricultural water to other voting interests and had farmers pay the tab on top of that with higher water rates.  Paraphrasing an Arab proverb: It would have been wiser for Sen. Feinstein to bring some water when going out to redistribute water. But her political party is based on dividing water, not creating new water resources.

Democratic Rep. John Garamendi, D-Walnut Creek, asserted that H.R. 1837 was starting a “water war.”  But that water war had begun three years earlier when Feinstein grabbed water from Central Valley farmers for redistribution to fishing, recreational and real estate interests in the San Joaquin Valley

On Feb 28, President Barack Obama vowed to veto H.R. 1837.

But according to the Fresno Bee newspaper, by March 9 Feinstein was in meetings with Republican Rep. Jeff Denham of Turlock to negotiate a halt to the propaganda and water grabbing war.

‘Fire, water and government know nothing of mercy.’

Feinstein and Boxer and their voting block in the U.S. Senate could have killed H.R. 1837, could have rewritten their own bill to send back to the U.S. House or could have done nothing.

But this is an election year.  Feinstein herself is up for re-election. Democrats may not have the votes needed to shoot down H.R. 1837 in the Democratic-controlled U.S. Senate.  Or Democrats may need bipartisan support to pass other legislation for jobs bills in their home districts to “bring home the bacon” before the election.

Thus, consent of the governed is emerging only because of political necessity, not out of any concern for a phony Delta “democracy.”  Up until Feinstein offered to call a truce and negotiate a new treaty, the only “democracy” that had emerged was a kleptocratic democracy (a government characterized by rampant greed and corruption).

“Fire, water, and government may know nothing of mercy,” runs a proverb. But hopefully Democrats and Republicans will come to an agreement of the “consent of the governed” in negotiating new terms to California’s historic water social contract between farmers and other interests in California’s perpetual water wars.