By Wayne Lusvardi

U.S. Sens. Barbara Boxer and Dianne Feinstein, both California Democrats, are still shorting water to Central Valley farmers by vowing to kill H.R. 1837 in the U.S. Senate. That’s the San Joaquin Valley Water Reliability Act sponsored by Rep. Devin Nunes, R-Tulare. President Obama’s senior advisors have also recommended against signing H.R. 1837, should the U.S. Senate pass it.

U.S. Senate Minority Leader Mitch McConnell, R-Ky., is presently holding H.R. 1837 at the Senate Desk as a trailer bill on the Western Economic Security Today Act of 2012.  By holding the WEST Act, it cannot be killed by the Democratic Party majority in the Senate by putting it up to a vote.

The WEST Act is an umbrella bill of several pieces of legislation promoting economic growth in the Western United States sponsored by Sen. Orrin Hatch, R-Utah.   H.R. 1837 comprises about 50 of the 70 pages of the West Act.

H.R. 1837 and the WEST Act are both being held possibly for inclusion as trailer bills on any bill that advances for vote on the floor of the Senate where Republicans can trade votes with Democrats under  “logrolling.”  Should Republicans take control of the U.S. Senate in November, H.R. 1837 would be poised for early passage.

The Obama-Boxer-Feinstein Big Farm Water Short of 2012

The word drought is almost a meaningless term when, at maximum, California only has six months of water storage in its reservoir systems — and that is during a wet year.  Drought is nearly indistinguishable from non-drought in California.

So, if it cannot be called a politically induced drought, what can we call Obama, Boxer and Feinstein’s vow to defeat H.R. 1837

It’s a political “water short.” More precisely, it can be called the Obama-Boxer-Feinstein Big Farm Water Short of 2012.  This is synonymous with a “short sale” in real estate, where a home is sold for a price short of the mortgage balance owed.

H.R 1837 would repeal Feinstein’s HR 146, the San Joaquin River Restoration Act of 2009, and restore the certainty of contracted water rights to Central Valley farmers.

Right now, federal legislators can swoop in and transfer water under long-term contracts to farmers and redistribute it to special interests without compensating the farmers for losses. Farmers have no “reliability” that the federal government will supply contracted water over the entire period of a farm loan. Nor can farmers be guaranteed an adequate period to recover costs of any water conservation improvements they install.

And if farmers want their existing water contracts renewed, they would have to go through an environmental “shakedown” process called “mitigation.”  Mitigation means the lessening of environmental impacts.  But it is sometimes used for other purposes.

Under the Central Valley Project Improvement Act of 1992, by Rep. George Miller, D-Concord, and Feinstein’s H.R. 146, Congress can reduce farm water contracts from 40 to 25 years, require farmers to go through an environmental review process to renew their water contracts,and extracts taxes, water and land from farmers to pay mitigation to unharmed third parties.

Farmers contend that only legitimate “stakeholders” should be allowed into federal water contracts. Water stakeholders are usually defined as farmers with pre-existing water contracts, state and federal water contractors and taxpayers (those paying property taxes on farmland and taxes on farm products). What so-called environmental restoration acts do is allow third parties the right to compensation without suffering any real physical loss.  Non-stakeholders are bystanders who don’t own land or water rights, or pay taxes on land or agricultural products.

Farmers also advocate exempting from obligations to restore the San Joaquin River those farmers who had water rights or contracts prior to the1992 Central Valley Project Improvement Act. All federal taxpayers originally paid for the federal Central Valley Water Project.   Why should only Central Valley farmers have to pay for retroactive environmental mitigations to benefit third party non-stakeholders having no historical rights in the Central Valley?

Back in March 2012, Democrats in the U.S. House of Representatives tried to enlist Republican support for voting against H.R. 1837 on the basis that it would violate other states’ rights to water.  This failed, and H.R. 1837 passed the Republican-controlled House and was forwarded to the U.S. Senate, where it remains stalled.

Mitigations are Giveaways for Political Purposes

The Fifth Amendment to the U.S. Constitution provides for payment of “just compensation” for physical takings by government for what a property owner lost — not what they can gain by extorting government by “holding out” for higher compensation.  Regulatory takings by legislation are typically non-compensable no matter what loss someone has suffered.

However, environmental laws and regulations typically allow bystanders to use the “environmental mitigation” process to shake down farmers, developers, industries and public utilities for indirect economic benefits.  Mitigations allow for the transfer of the benefits of water, land or fish to third parties without them paying for it. Mitigations are giveaways often used for political purposes.

Restoration of the San Joaquin River came about due to a 2006 court settlement coerced by the U.S. Court of Appeals in Sacramento.  It is not surprising that a Northern California court ruled favorably for regional economic interests.

Farmers would end up having to pay $900 million to reconnect the San Joaquin River to the San Francisco Bay to restore salmon runs. Third parties that had no historic property rights when upstream water was diverted from the San Joaquin River for the State Water Project in the 1940’s and 1950’s would receive mitigations in the form of fisheries, water rights or land without having to pay for it.

Proposition 84 was passed in California in 2006 for $5.38 billion in bonds for water related projects, of which $837 million remains unspent.

The Fog of Water Wars

The “fog of war” is a term used in warfare to describe the reason for a war remaining clouded and obscured.

Similarly, the purpose of the San Joaquin River restoration is obscured when the $900 million estimated cost could go toward the more-important building out of the Peripheral Canal around the Sacramento Delta and adding more water reservoir storage or flood improvements around the Delta.

Why spend so much money on environmental mitigation before the building out of the Peripheral Canal or a new reservoir?

Why grab water from farmers and transfer it to commercial interests as if this is just another redevelopment project benefiting private commercial interests?

Why require preemptive environmental mitigation except possibly to give Northern California an upfront gift for their ultimate anticipated approval of the Peripheral Canal Project?

Why has the Democratic Party worked so hard to stall the Peripheral Canal and any new reservoir, but worked so persistently in pursuing the San Joaquin River Restoration and five water bonds that have produced no new water?

The only answer that seems plausible is that the politicians don’t have the political payoffs to Northern California sealed yet.  This is after spending $18.7 billion on waterless water bonds.

A better policy might be to abandon the San Joaquin Restoration and move ahead on the Peripheral Canal, using emergency powers given the state’s scant water storage.  California Democrats have spent $18.7 billion on trying to meet Northern California’s insatiable mitigation demands before they will assent to the Peripheral Canal.  It is time to stop using the “soft power” of money.  It is time to use the “hard powers” granted to the state. It is time to stop leaving farmers without reliable water and the rest of the state with precarious water supplies.

If California is going to try to arbitrate a water war, it better quit its failed policy of appeasement and move ahead without taking uncompensated water from farmers. It is not possible to make Northern Californians better off without making farmers worse off.  And the policies of the Democratic Party have only made Northern California’s demand insatiable.

Why should only farmers pay for de facto payoffs to gain Northern California assent to the Peripheral Canal when this is a statewide issue? Denial is a river in California.

By Wayne Lusvardi

Yesterday U.S. Senator Dianne Feinstein, D-Calif., responded to a Republican-backed water bill stalled in the U.S. Senate with a deal that might end up as a pact with the water devil for farmers and water agencies.

Feinstein included provisions in an amended Senate Appropriations agriculture and energy bill to possibly provide more certainty of water supplies for Central Valley farmers.

Feinstein also surprisingly dangled the carrot of an expedited federal review for approval of the proposed Sites Reservoir in Colusa County. Water for the Sites Reservoir would be diverted from the Sacramento River.

Stalled House Bill Would Repeal Feinstein’s 2009 Water Bill

The House bill that is stalled in the U.S. Senate, H.R. 1837 by Rep. Devin Nunes, R-Visalia., would have repealed Feinstein’s 2009 San Joaquin River Restoration Act, H.R. 146.

Feinstein’s 2009 bill took water allocations from farmers and transferred them to commercial fishing, recreational and real estate interests in northern California under the guise of environmental restoration.

Her 2009 bill also required future renewal of agricultural water contracts to go through an environmental review process. That would be like farmers and water agencies having to deal with the water devil by having to pay for contrived environmental mitigations payouts to so-called “stakeholders.”

The Apparent Deal at Hand

What is apparently on the bargaining table now is a trade of expedited federal review of a new proposed water storage reservoir and possible greater certainty of farm water in return for keeping the provisions of Feinstein’s 2009 bill intact. As it is often said, the devil is in the details.

Feinstein’s amendments to the Senate’s appropriations bill would:

* Provide for a six-month study by the Department of the Interior on ways to bring about additional farm water deliveries;

* “Urge” the Department of Interior to “facilitate and expedite” transfers of federal Central Valley Project water to farmers; and

* Expedite the Federal review for the new proposed Sites Reservoir.

A Deal with the Devil? 

The critical question with such a deal: Is it a pact made with the Water Devil — a bargain done for present gain without regard to future cost or consequences?

Would farmers and water agencies be willing to incur huge future environmental liabilities on the flimsy promise that federal agencies would comply with being “urged” to fast-track water transfers and review of a new proposed reservoir?  Why would federal agencies need “urging” to fast track review of a new dam when California only has a half-year of water storage capacity in its present water system?  Wouldn’t California’s thin water storage capacity be enough of an emergency to rush reviews?

And what would prevent such guarantees included in an agricultural and energy bill from being easily overturned? What would hold both parties to their part of the bargain in the long term?  California water history indicates that water deals obtained by “force and/or fraud” are bound to unravel while those obtained by “consent of the governed” are more lasting.

And why would farmers and water agencies be willing to deal with the Water Devil of environmental reviews of their water contract renewals when the outcome of the Department of Interior study six months down the road is uncertain?

Even Democratic Congressman Jim Costa of agricultural Fresno is cited as a backer of the “more aggressive House proposal,” HR 1837, rather than Feinstein’s deal.  However, Costa also said Feinstein’s deal was “helpful.”

Nunes said he would not reject Feinstein’s deal on its face but wanted greater assurances.

Maybe a deal can be struck now that negotiations have been re-opened.  But it is an election year for Feinstein. And that may mean floating up a deal for farmers and water agencies that is meant to buy votes.  Feinstein’s deal would not repeal her one-sided 2009 water bill that was ramrodded through Congress by force and fraud instead of consent of the governed.

‘Force, Fraud or Consent of the Governed?’

The Sacramento Bee described the pending Senate agricultural and energy appropriations bill as a “must pass” piece of legislation to keep the U.S. Army Corps of Engineers and U.S. Bureau of Reclamation funded for 2013.  The 2013 fiscal year begins July 1.

It appears that Feinstein is back to the devilish use of “force and fraud” rather than obtaining the “consent of the governed.”  But there still is a small window of time to cut a deal for mutual benefit.

By WAYNE LUSVARDI

The waters are being roiled again in the Delta.

The roiling concerns H.R. 1837, the Republican-backed San Joaquin River Reliability Act currently pending before the U.S. House of Representatives.

Northern California Rep. John Garamendi, D-Walnut Grove, says the bill “destroys a state consensus” on the San Joaquin River and the Sacramento Delta.  Nothing could be further from the truth.

California’s Democratic U.S. senators, Barbara Boxer and Dianne Feinstein, have joined Garamendi’s chorus and called “for consensus-based solutions that respect the interests of all stakeholders.”

There never was a consensus except perhaps between the plunderers of the spoils from California’s perpetual water wars.

The Shame of the River Consensus Sham

Garamendi says H.R. 1837 would undo 150 years of water law, remove all environmental protections for the Delta and Central Valley farmers and allow destructive water exports from the Delta.

He says H.R. 1837 should be called the “State Water Rights Repeal Act.” He’s right — but for the wrong reasons. What H.R. 1837 does is undo what Feinstein did with the San Joaquin River Restoration Act of 2009 – H.R. 146.  That bill was enacted three years ago, not 150 years ago.

Contra Garamendi, H.R. 146 was a prior water grab from farmers.  It limited how much water farmers can take for crop irrigation and imposed tiered water rates and environmental impact reports for renewal of all existing water contracts. In short, Feinstein’s H.R. 146 redistributed the water taken from farmers to fishing, recreational and real estate interests.

There was no bipartisan consensus when Feinstein’s bill was passed.  In fact, it had to be bundled with a bunch of bills under the Omnibus Public Land Management Act of 2009 for it to pass even through a Democratic-controlled Congress and get signed by Democratic President Barack Obama.  There was no “consensus” except of Democrats.  Consensus implies that those having to give up water rights and have to pay higher water rates somehow concurred with Feinstein’s bill.  This was not the case.

H.R. 1837 Would Restore Genuine Consensus

What Republican Rep. Devin Nunes’ HR 1837 bill would do is repeal Feinstein’s HR 146 and replace it with the Bay-Delta Accord drafted in 1994.  The Bay-Delta Accord was “consented” to by both then-President Bill Clinton, a Democrat, and then-California Governor Pete Wilson, a Republican.  This is what genuine “consent of the governed” entails.

Rep. Nunes’s HR 1837 would depoliticize water contracts.  H.R. 1837 provides for water contracts to be renewed automatically, instead of being thrown to political piranhas for the picking under a contrived retroactive environmental impact report.

Sure, by undoing H.R. 146 and replacing it with H.R. 1837 commercial salmon fishermen, sport fishing and recreational-real estate interests would be denied new water rights.  But they never had any water rights in the first place. Nor were there any environmental impacts on them because they had no rights or ecosystem to impact.  All that an environmental impact report would conclude under California’s sham California Environmental Quality Act is that salmon fishing rights were not granted 150 years ago and should be now.

But farmers had to buy their land to get their riparian (river) water rights 150 years ago.  A riparian right is a right to use the natural flow of water on land that touches a river, lake, stream or creek.

Appropriative water rights are those obtained by permit, court actions or legislative action.  Such rights are always subject to who is in political power and whom they may want to redistribute the rights to.

Garamendi also claims that H.R. 1837 is “imbalanced” and does not “satisfy the needs of everyone in California.”   HR 1837 is no more imbalanced than is Feinstein’s H.R. 146, which harms Central Valley farmers.

Neither would H.R. 1837 “take away California’s ability to control our own water destiny,” as Garamendi claims, any more than Feinstein’s H.R. 146 did.  Both H.R. 146 and H.R. 1837 are federal legislation.

As for the charge that “water storage and water recycling are important components of water policy, and they’re lacking in HR 1837” — the same could be said of H.R. 146.

H.R. 1837 also does not, as the Democrats claim, “threaten thousands of jobs for salmon fishermen and Delta farmers.”  Those thousands of jobs for San Joaquin River salmon fishermen and farmers would just be taken away from Central Valley farmers and from city water ratepayers and consumers of agricultural produce.

Politics is Dis-sensus

Any determination of an environmental impact under H.R. 146 isn’t environmental, but cultural and political.  Why, under Feinstein’s HR 146, in a drought should commercial salmon fisheries, sport fishermen and recreational/real estate interests have first dibs on water over?  Why should fishing and recreational interests be granted water rights without buying them?

And what about the “stranded assets” of farmland that no longer will have irrigation water?   Shouldn’t government re-pay farmers for those “sunk costs,” instead of hiding behind the sham that a “regulatory taking” is non-compensable?  Where is the “public purpose” behind the sham wealth redistribution of H.R. 146?  How is H.R. 146 any different than taking private property rights and giving them to developers under California’s defunct Redevelopment Law?

Water Rights by Force and Fraud — or Consent of the Governed?

A mix of force, fraud and consent of the governed have held California’s historic water contract together.  The elements of that contract have 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.

Feinstein’s H.R. 146 and the state-level Delta Reform Act together 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, a greater share of the water to redistribute to special interests and a new Delta regional sewage system to be paid for mainly by farmers and cities in the Southern half of the state.

Feinstein’s H.R. 146 confiscated water rights by the force of law and the fraudulent ideology of environmentalism and redistributed it to non-farming constituents under a wealth distribution scheme. Nunes’ H.R. 1837 merely returns those water rights to the pre-2009 genuine political “consensus.”

A sham consensus is no substitute for consent of the governed in California’s political water wars.