On Jan. 17, Minority Whip Rep. Kevin McCarthy of Bakersfield, Rep. Devin Nunes of Tulare and Rep. David Valadao of Hanford sent a joint letter on the drought to Feinstein. The letter inquired about her solutions to the currently emerging California historic drought. 

The letter did not ask for a suspension of the Endangered Species Act.

However, the three congressmen last week joined House Speaker John Boehner, R-Ohio, in visiting drought stricken farmers in Bakersfield.  They called for a federal waiver of H.R. 146, The San Joaquin River Restoration Settlement Act of 2009, which Feinstein had sponsored.

H.R. 146 implements a 2006 federal court order to permit the diversion of water from farmers into the San Joaquin River to reestablish salmon runs to the ocean. According to this summary:

Plaintiffs asserted that the Bureau’s operation of the dam violated the National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and the California Fish and Game Code (section 5937), which requires dam operators to release sufficient water to maintain “good fish populations.” 

Feinstein replied to the three congressmen with a Jan. 22 letter that detailed her involvement in water issues and legislation in recent years. But she also wrote, “As long as conditions remain dry, there is very little gain to be made by relaxing ESA (Endangered Species Act) requirements.”

Also at issue is California Gov. Jerry Brown’s recent California Drought Declaration in which he suspended the provisions of the California Environmental Quality Act for any emergency drought relief measures.  Brown’s action raises the necessity of also obtaining a waiver of the federal Endangered Species Act before Brown’s suspension could be acted upon.  But once again, that is not what the three Congressmen requested in their letter.

Feinstein pleaded for GOP leaders to “move beyond partisan divisions, and work together to provide relief to those Californians suffering from this drought.”

Dems and GOP speaking to their constituencies, not each other

But to do that both the Democrats and the GOP are going to have to get beyond speaking only to their respective constituencies, and instead start speaking to each other.

Feinstein’s letter addresses the fears of her party’s powerful environmental lobby that the Endangered Species Act would be abrogated.

She documents her efforts to try to provide legislation authorizing the Federal Bureau of Reclamation to undertake water banking, water transfers and water storage studies. And she says she “championed” the CALFED-Bay-Delta Restoration Program. She says she received “very little support from House Republicans to pass these provisions.”

The congressmen’s letter refers to the GOP’s powerful farm lobby’s concerns about the unintended consequences of Feinstein’s H.R. 146 allowing 800,000 acre-feet of water in the San Joaquin River to flow to the ocean in 2012 for fish restoration.  The foreseeable consequence of that action is that there now is no water stored for what appears to be an historical drought.

Both letters don’t directly address solutions to the issues raised by farmers themselves.  However, the GOP’s call for a federal waiver of H.R. 146 is closer to the mark, albeit a congressional waiver cannot abrogate a court order. But it possibly could suspend the policy of releasing water to flow to the sea in an historic drought.

Addressing the concerns of farmers

The concern of Tom Nassif, head of Western Growers, is not about suspending the California Environmental Quality Act or the Endangered Species Act.  Nassif’s concern is that Feinstein’s H.R. 146 has taken $180 million from farmers in higher water rates to fund fish restoration of the San Joaquin River — only to end up with farmers subsidizing the death of the very farm water economy on which they depend.

The drought has cut federal farm water allocations by 95 percent.  But the water from prior wet years that could have been stored or banked has been squandered along with the $180 million in higher water rates that won’t restore salmon runs in a drought anyway.

Discussion too late

Neither side in the emerging drought war is talking about such possible measures as:

* A water bill rebate to farmers;

* Use of unspent state water bond monies for drought alleviation actions;

* How a water transfer of federal water into the State Water Project could be accomplished expeditiously without any environmental clearances;

* How federal water could be rented by farmers to withstand the drought with the payment of rent deferred.

A discussion of any such measures is already too late, however, as pointed out by Jeff Simonetti, a water policy analyst for Stratecon Inc. at the HydroWonk Blog.

The bigger problem seems to have been addressed by California State Sen. Jean Fuller, R-Bakersfield, during an interview at Boehner’s rally to fight drought.  There may not be enough water in either the federal or state water systems to weather a drought of this kind.

Northern California not prepared for drought

Fuller said farmers and Southern California counties have water banks and contingency plans to manage droughts, but Northern California cities don’t.  Water storage hasn’t been needed in recent droughts.

But for the first time in 37 years, Northern California communities are already rationing water. There is no state drought contingency plan for them.

California’s prioritization of environmental water diversions for fish has diverted attention away from basic lifeline planning for droughts.

Escaping the snow-stormy Northeast, also on Wednesday U.S. Speaker of the House John Boehner, R-Ohio, held a drought rally with fellow Republicans in Kern County. ABC News in Fresno reported:

“From Washington D.C. to the fallow cotton field in Bakersfield, House Speaker John Boehner stood up next to Central Valley Congressmen Devin Nunes, David Valadao, and Kevin McCarthy who all support the proposed legislation to stop river restoration in favor of drought relief.

“‘How you can favor a fish over people is something the people in my part of the world would not understand,’ said Boehner.”

Here’s what’s behind the headlines. The specifics aren’t clear, but what’s known so far is that a new bill by Nunes, so far without a number, would revive his H.R. 1837, the San Joaquin River Valley Water Reliability Act of 2012.

H.R. 1837 did not pass. But it tried to repeal H.R. 146, San Joaquin River Restoration Settlement Act of 2009, by Sen. Dianne Feinstein, D-Calif. Her bill emphasized the environment over local water allocation. (H.R. 146 originated as battle landmarks legislation, but was modified; hence the “H.R.,” House Resolution, designation, instead of “S.” for Senate Resolution.)

The correlation of political forces changed in the past three years, with the drought striking California and with Democrats worried about losing California House seats in November. (No California U.S. Senate seat is open this year.)

Additionally, Nunes’ bill would create a joint House-Senate committee on California’s drought problems that would take control of federal water transfers to the State Water Project by usurping Brown’s new Drought Task Force.

Republicans usually push “federalism” and local control, but are using the drought for federal power to trump state power.

Rally

Will the GOP rally actually bring more water to Californians? A sharp response was given by Bakersfield Californian reporter Lois Henry in a video interview given at the rally. She is widely regarded as a frank and independent voice on California’s water situation. She said:

“No!  So far what they have described has already been pushed in the House by Devin Nunes numerous times and died at the Senate every time…. This is mainly something to put pressure on Dianne Feinstein.  This is her home state.  This is affecting her constituents as well…. They are serious about pushing this bill, but this is really something to push Dianne Feinstein…. The devil is in the details of the new bill proposed by Nunes and thus far there are no details.”

Henry was skeptical that another new bill proposed by Nunes would work. Even if it passed, she warned, it would invite endless lawsuits. “We will see snow in the Sierras before we will see that bill passed,” she quipped.

And Rep. George Miller, D-Martinez, branded the proposed GOP bill “misguided” and “dangerous.”

Court settlement

Feinstein’s bill, H.R. 146, was intended to comply with a court-ordered settlement 18 years ago to restore salmon runs along the San Joaquin River by diverting water from farmers. H.R. 146 requires farmers to pay for up to $800 million of river restoration costs from higher farm water rates; $180 million will be collected from farmers by 2014.

California was to pay $200 million of this cost from two water bonds voters passed in 2006: Proposition 84, $5.4 billion; and Proposition 1E, $4 billion.  However, the propositions did not provide for drought relief for farmers.

The court settlement requires 247,000 acre-feet of water to be diverted from farmers in dry years and about 356,000 acre-feet of water in wet years.  That would be roughly enough water to irrigate from 82,333 to 118,667 acres of farmland each year.

A provision in H.R. 146 to allocate $102 million of funds collected from farmers’ higher water rates to replenish lost farm water has never been implemented.

As reported in the San Francisco Chronicle, Tom Nassif, president of Western Growers, charged federal regulators worsened the situation last year “by failing to pump and store 800,000 acre-feet of water runoff” by letting it run to the sea.

And in a statement released at the drought rally, he urged, “It’s time for Congress to act.”

What is particularly aggravating to Central Valley farmers is that their allocation of water this year has been cut back by 95 percent after they have paid $180 million for more fresh water for fish, even though the water ended up flowing to the Pacific Ocean.  Farmers have ended up paying for their own demise.

Explosive crisis

State Sen. Jean Fuller, R-Bakersfield, said in an interview that it was only a matter of time before the farm economy is dead; that it won’t be long before many Northern California communities that normally don’t suffer from droughts are going to be parched right behind the farmers; and that there is no contingency plan for providing for a drought of this kind.

She said it’s embarrassing that President Obama has not even responded to the letters from Republican state legislators calling for immediate action. And she said that, even if Brown suspended California’s environmental laws to aid in drought relief actions, that federal environmental laws also would have to be suspended.

She warned, “It is only a very short time before this crisis explodes.”