Drought has been called a slow-moving natural disaster – unlike flood, fire and earthquake. Perhaps the only thing that moves slower is federal law and policy. Even so, with the California drought now in its fifth year, it must be asked: Where are the innovations in federal law that might have helped?
Politicians in Washington could have passed laws four years ago that would be yielding benefits today. These would be things like assistance with groundwater recharge, water conservation on farms, stormwater capture and wastewater recycling.
I call these non-nuclear options, because they don’t peg the Geiger counter in many lobbying offices in the land. They are nontoxic because, generally speaking, they don’t take water from anybody else, and they don’t kill any protected critters.
Instead, Congress has fixated on the old radioactive options: building dams and rewriting the Endangered Species Act.
That’s right, in 2016 in the throes of a five-year drought, Congress aims to fix the drought by pouring acres of concrete and unplugging the respirator that sustains California’s imperiled fish and habitats.
This is not a partisan endeavor. The two primary bills headed for debate this year are authored by a Democrat and a Republican: Sen. Dianne Feinstein and Rep. David Valadao, R-Hanford. Both propose money and rule waivers for economically uncertain dam-building projects, and undermine the Endangered Species Act. The only real difference is how hard they peg the needle.
We don’t think the Delta should be a sacrifice zone for other areas of the state that want to benefit from the water supplies. It’s not about trying to move the knobs differently. This watershed, this estuary, is completely overtaxed by water exports.
Osha Meserve, attorney for Local Agencies of the North Delta
Little in either bill offers near-term water supply benefits that don’t also harm some other water user.
Feinstein’s bill, S. 2533, does include some support for a few non-nuclear options, including groundwater recharge and wastewater recycling. But they come as a token gesture after dozens of pages of proposed legal changes that would cause most Northern Californians to blow a valve.
Amazingly, Feinstein – a lifelong San Francisco liberal – has publicly railed against the Endangered Species Act in an effort to win support for her bill. In a March 11 statement, Feinstein attacks recent protections for Chinook salmon and Delta smelt carried out according to biological opinions to protect these fish under the Endangered Species Act:
“It’s inexcusable that pumping levels have been reduced without sufficient evidence of fish mortality,” she said. “But rather than pumping as much water as possible under the biological opinions, pumping levels were ratcheted down for an entire month between mid-January and mid-February.”
Feinstein’s bill would order federal agencies to “maximize” water diversions from the Sacramento-San Joaquin Delta. That word appears 10 times in her bill. Feinstein says her bill does not amend the Endangered Species Act. But it does order changes in biological opinions, which is the same thing because they are instruments of the ESA.
Never mind that the biological opinions were long ago vetted by the National Academy of Sciences and upheld in a federal appeals court. Feinstein seems to think politicians can do better.
Water diversions were dialed back in late January in a voluntary act by the U.S. Bureau of Reclamation and the California Department of Water Resources. The water agencies, which control the two large pumping facilities in the south Delta, decided on their own to protect Delta smelt by reducing diversions.
The U.S. Fish and Wildlife Service – ever cognizant of the drought – allowed them to divert more water for several days during that period, even though a strict reading of the biological opinions might not have allowed that. As soon as the threat to smelt passed – revealed by real-time monitoring of water quality and in-river surveys for smelt – the wildlife agency allowed diversions to return to the maximum allowed.
Feinstein’s bill would order the agencies, in essence, to go back to the dark ages and pump water at that maximum level whenever possible. This would impose the same type of rigid operating prescription that harmed the Delta environment for decades.
Even the Bureau of Reclamation, an agency that exists to manage and extract water, objects to this approach. Former Reclamation chief Mike Connor, now deputy secretary of the interior, had this to say in an Oct. 8 Senate hearing, about an earlier version of Feinstein’s bill that contains the same language to “maximize” diversions:
“We strongly disagree,” Connor said, “with the idea that new legislation will salvage more water than the operators on the ground are wringing from the system every day.”
Yet, amazingly, another prominent California Democrat later stepped forward to support Feinstein’s bill: Rep. John Garamendi, who lives in the Delta and who has, until now, been a staunch defender of the estuary. On Feb. 23, Garamendi announced he will introduce companion legislation to “mirror” Feinstein’s bill, even though it could harm his own community.
“We don’t think the Delta should be a sacrifice zone for other areas of the state that want to benefit from the water supplies,” said Osha Meserve, an attorney for Local Agencies of the North Delta, a coalition of levee maintenance and water agencies. “It’s not about trying to move the knobs differently. This watershed, this estuary, is completely overtaxed by water exports.”
Valadao’s bill, HR 2898, contains nearly identical language to “maximize” Delta water diversions. It is widely expected, if any legislation moves forward, it will be a compromise based on the Valadao and Feinstein bills.
That is worrisome, because Valadao’s bill goes much further, allowing a 50 percent increase in Delta water exports beyond what the biological opinions permit. It also bars wildlife agencies from using Endangered Species Act rules that would restrict water deliveries. And it orders federal agencies to set aside the National Environmental Policy Act when reviewing projects aimed at responding to the drought.
House Republicans introduced a water and energy appropriations bill on Tuesday that would lock some provisions of the Valadao and Feinstein bills into a larger spending package, including a requirement to maximize Delta water diversions.
Valadao’s bill also adds specific authorizing language for Temperance Flat Reservoir, a proposed new dam on the San Joaquin River. It would allow the Secretary of Interior to single-handedly authorize construction if the project is simply proven to be “feasible,” bypassing the usual detailed congressional review and cost-benefit analysis.
Temperance Flat probably can’t be built without that waiver, because it is the worst performer among a handful of reservoir projects currently proposed in the state. It is estimated to yield only 100,000 acre-feet of “new” water supply, yet it would cost an estimated $2.5 billion to construct. This means it would likely fail a cost-benefit test.
Valadao’s bill also orders federal agencies to simply ignore a critical finding by the U.S. Bureau of Land Management: In 2014, it ruled the Temperance Flat reservoir site is eligible for federal Wild and Scenic River status. This alone would likely prevent reservoir construction.
The solutions offered by Feinstein and Valadao are really about nostalgia. They want to pretend we still live in an era when natural resources seemed limitless – when a river could be dammed or diverted without considering water quality, fishing harvests or economic reality.
California’s water managers know we don’t live in that world anymore. Unfortunately, our politicians live in a world of their own.
Matt Weiser is a freelance writer based in Washington, D.C. He covered water and natural resources at The Sacramento Bee. Contact him via Twitter @matt_weiser.