By WAYNE LUSVARDI

Ready for another phantom “drought”? The National Resources Defense Council is. The NRDC’s bogus Delta Smelt lawsuit brought the court-ordered “drought” from 2007 to 2010.

Now the NRDC is launching a disinformation campaign to divert the public’s attention from the bigger water issues of the Sacramento Delta. On Sept. 16, 2011, U.S. District Court Judge Oliver Wanger threw the case out of court as based on bogus science.

Gov. Jerry Brown declared the “drought” over in 2011. Yet water rates have risen anyway across the state as a result of the bogus “drought.”

In the Feb. 6 issue of the San Francisco Chronicle, NRDC attorney Doug Obegi  said there are three “facts” and three “myths” about the Sacramento Delta.  Like any slick attorney, he is working on you as if you were on a jury to make sure you are persuaded of his case.

The Delta is where most of the water runoff from the snowpack of the Sierra Nevada Mountain Range ends up.  California depends on the Delta for most of its water for farms and cites, as well as fishing and water recreation.

To understand the big issues with the upcoming Delta Plan of the State legislature’s Delta Stewardship Council and the proposed $11.1 billion Water Bond on the November ballot, it is important not to be distracted by small facts and alleged irrelevant myths.

The NRDC’s device for distracting you from the water issues of the Sacramento Delta is a purported checklist of so-called “facts” and “myths” about California’s water system.  Let’s look at them without being diverted from the larger issues.

Small Facts and Big Myths as Diversions

NRDC Diversion No. 1:  “Northern Californians don’t get their water from the delta, so we shouldn’t care what happens.”

Obegi wants Northern Californians to care about what happens with the water from the Delta.  Northern Californians should not think that they don’t get their water from the Delta.  Ok, being involved is a good thing.

But NRDC’s emotional appeal is to your intelligence.  If you were smart and knew that Northern California relied on water from the Delta you would be politically alert and active.  People want to brag about being smart about the car they bought, about their “Smart Phone,” or the politician or ballot measure they voted for.

It is important for Northern Californians to be educated about the upcoming Delta water issues. But the above so-called myth is just used as a subtle set-up to make you believe that Southern California is about to steal more water again from Northern California. As will be explained below, this is the opposite of what has happened and is likely to happen.

Water is a socialized commodity in California. It does not belong to Northern Californians or Southern Californians.  There is no water to “steal.”  Long ago Californians agreed to a social contract for water: Southern California got water and Northern California got flood protection from the occasional destructive rising of the inland sea of the Sacramento Delta. (Think Hurricane Katrina.) By subtly entering emotionalism into the issue, Obegi diverts you from the bigger facts that will be explained below.

NRDC Diversion No. 2: “Even with stronger restrictions on pumping to protect salmon and other native fish, the state and federal water projects divert as much water from the delta as they did from 1980 to 2000. As much water is diverted from the delta on average today as before the historically high pumping levels of the 2000s devastated the delta ecosystem, according to the state Department of Water Resources and the Public Policy Institute of California.”

What the NRDC has done is slipped what is called a non sequitur into the above fact.  What a non sequitur does is claim to make a cause and effect relationship when, in fact, there is no logical connection. In street language, it is a “disconnect.”

It is true that state and federal water projects are pumping no more water from the Delta on average than they did from 1980 to 2000 (with the exception of the 3 years of the above-described court ordered “drought” from 2007 to 2010).  But that does not mean that “high pumping levels of the 2000’s devastated the Delta ecosystem.”

Salmon and even the Delta Smelt are currently thriving after the high rainfall and snowpack of 2010 and the resumption of pumping from the Delta.

There are other reasons for a long-term threat to the Delta ecosystem.  But high pumping levels typically also mean high water levels in storage reservoirs. They also mean abundant fresh water levels in the Delta that boost the population of desirable species of fish, fishing and recreation.

Huge pumps on the Delta that send water to Southern California are not the only threats to the Delta ecology. The Delta ecology is more threatened by local urban runoff than from pumping water out of the Delta. One of the major sources of pollution of the Delta is local government wastewater treatment plants in Northern California.   But the NRDC wants Northern Californians to believe that high water pumping to Southern California is the only culprit. The NRDC can manufacture an unnecessary water war just as it manufactured a phony drought.

NRDC Diversion No. 3: “As many jobs were lost from closing California’s salmon fishery in 2009 as were lost in farming communities from restricting pumping to protect fish. True. Despite wildly inflated myths, studies by economists from the state, UC Davis and University of the Pacific show that California’s fishing industry lost about as many jobs as did the farming industry when pumping was restricted during the 2009 drought to protect fish.”

This may be true. But unlike fishing, farmers can shift their workers to fallow fields and alternative crops in other locations that are not dependent on Delta water.  Farmers typically rely on groundwater supplies when there is a dry year and the Delta cannot meet all its contractual obligations to farmers.

Once again, what the NRDC is trying to do is cover up its own blame for causing job losses due to the Delta Smelt case they filed to stop pumping of water to farms in Central California and cities in the southern half of the state. The NRDC should be blamed for job losses to both farming and the fishing industries.

The NRDC once again is trying to politically play fishermen against farmers, while shifting blame away from themselves for job losses during the phony drought of 2007 to 2010.  Nice try. But it won’t work.

NRDC Diversion No. 4: “Fact: 4. Despite increasing flows to protect fish over the past two decades, delta fish populations continue to decline. False. Since pumping has been reduced, populations of delta smelt have rebounded dramatically, and salmon populations have also increased after the rainy season of 2010.

Contrary to the NRDC, the Federal judge in the Delta Smelt case ruled that the science presented by the NRDC and other government agency in the case was “false testimony.” It was never proven that Delta Smelt fish populations declined during the pumping of water out of the Delta.

NRDC Divsersion No. 5: “Most of the water pumped from the delta goes to Southern California lawns and swimming pools. False. Nearly half of the water exported from the delta is for agribusiness. Thanks to improved efficiency, Los Angeles uses as much water today as it did 25 years ago, despite adding 1 million residents, and Orange County has one of the largest water recycling plants in the nation. Even so, improved water-use efficiency could create trillions of gallons of new water each year for cities and agriculture.”

The above is true.  Southern California lawns and swimming pools do not get half of the Delta water exports.  But what the NRDC omits is that the “environment” gets 64 percent of all distributed water in a wet year; and 35 percent even in a dry year.

Southern California water agencies are entitled to a maximum of 62 percent of the water deliveries from the State Water Project through the Delta in a wet year. But that only represents 2.6 percent of all the distributed water in California in a wet year.  And agriculture uses only 28 percent of distributed water in a wet year and 42 percent on average, according to the State Department of Water Resources.

The NRDC touts water recycling as a resource for Southern California. But California’s new Green Chemistry Law threatens water recycling. The Green Chemistry Law may not allow hard to dissolve chemicals from drinking water in tiny amounts.

NRDC Diversion No. 6: “California can divert less water from the delta and still meet its water needs by investing in water efficiency, water recycling and improved groundwater and storm water management.  True. Modeling by the state Department of Water Resources shows that the new water sources available by investing in water efficiency and recycling is more water than California has ever exported from the delta. Urban water managers know this; the City of Los Angeles plans to meet its water needs by investing in these tools, while simultaneously cutting its use of delta water in half.”

What the NRDC does not tell you in the above statement is that Southern California has already reduced water use by 1 million acre feet — enough water for up to 6 million people — from the 1980s to the present.  The new Delta Plan proposes to cut water another 20 percent.  But this will not replace the necessity for a water conveyance system around the Delta that would provide a more stable ecology.

Lost Legitimacy

As in court cases, diversionary tactics can be useful when arguments fail you, when you are backed into a corner, when you feel you are about the lose or when you are uncomfortable with the direction of the conversation.  The NRDC is signaling that they only have diversionary tactics to persuade you to shift local cleanup of the Delta mainly onto Southern Californians.  The NRDC’s arguments have been made to look like they have captured the high ground with facts and that others positions are mere myths.

After the infamous Delta Smelt court case, the NRDC has lost legitimacy in California. Their current disinformation campaign on the Delta is just a continuation of their divisive water wars.  The NRDC should not be listened to any longer on the issue of the Delta.

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.