HR 1837 Water Bill: Not That It Matters To Us 030712
Fringe Observation on Water Grabbing
In “Board Highlights” of last week we made reference to “a bill in congress to negate nearly 150 years of California water law to provide more water to the San Joaquin Valley”. It was a statement made after only modest investigation; on closer examination of the bill, the matter is a little more complex than that. It’s an issue in which divergent sides can make contradictory statements, neither of which is completely true. This Fringe analysis will seek to highlight some of the differences between the views and so further muddy the waters of the discussion, so to speak.
The Fringe Editor is not an expert in water law, and the bill itself is not completely transparent. The text, including all five titles and 31 sections, can be found HERE.
It is likely that no one completely understands the consequences of the bill, should it pass without amendment. This analysis intends to provide a wide view of the issue and the presentation the various players make on the issue. An explanation of the bill might emerge from the content of various statements, but probably not, and indeed, the purpose of this analysis is to present the issue in context of water in California and the West.
Such an analysis should start with areas where there is broad agreement. There is agreement that all parties are struggling to preserve the water rights of their constituents. That means all arguments are essentially biased. There is also wide agreement that HR 1837 undoes the water agreement of 2006, which smothered some active fire lines over water. Many people agree that HR 1837 will be an “all bets are off” catalyst for some old water wounds to flare again. Finally, nearly everyone agrees that HR 1837 constitutes another act by the federal government over matters which should be left to the states.
Ironically, (probably because the Republicans are a very ironic party) it is the “small government” GOP which is propelling the bill through congress. To be clear, though, the real loyalty on all parts is to their water using regions, and not party politics. There is bi-partisan support and bipartisan opposition for the bill. In general, though, the bill takes water away from fish, and from the Bay, and gives it to agribusiness; this is meat and potatoes for Republicans, who, for example, are cheek by jowl in favor of dams, and who mostly oppose removal of Iron Gate Dam, which, because of massive salmon die off in the Klamath, is the poster child for dam removal.
There is concern in other Western states, including Nevada, about what new federal intervention in state waters would mean. To be clear, the Feds have long intervened in water issues in the states, particularly when waters cross state lines, but the U.S. Army Corps of Engineering has spoken with authority over rivers and creating dams and projects which met the values of the day, but which are often criticized against changing values. Indeed, part of the water scheme being undone by HR 1837 was created by federal judges. Still, it can’t escape a thoughtful look at the situation that McClintock and the Republicans in Congress are willing to pass legislation which intrudes into the states to give water to agribusiness, but are unwilling to simply pass legislation which would leave control of medical cannabis to the states.
It is outrageous for congressional Republicans to favor some California water users over others by using federal law to redistribute California's water. If enacted, HR1837 would set a national precedent of Congress imposing mandates onto the water supplies of other states, not just California.
For more than a century, Western water law has been based on the states'
right to determine how their water is allocated and managed. As a legal
precedent, HR1837's water grab would upset that balance and spell disaster
for the delicate network of water-sharing agreements that provide water
across the West.
Congressman Tom McClintock has published remarks before Congress, and has replied to newspaper editorials on the bill, and he denies most of the claims made in the “Bay Area” press. A counter to that could be that of Congressman John Garamendi, who opposes the bill, coming from the Bay Area as he does. A third, and very major, player is the environmental community, some members of which brought the lawsuits which contributed to the issue.
What is the issue, exactly? It’s our water, but after we’ve lost control of it, our water when it nears the Sacramento-San Joaquin Delta. There is an archived article on the Delta, here, which briefly discusses the problems of human populations on the long web of waters of the rivers, and on the lands of the Delta itself.
There is an indicator species, the delta smelt, which joins the various native salmon as legal reasons for water to be maintained in the Delta. The farmlands of the delta, built on sand and peat and rich sediment, and the quaint towns of the Delta, and even Delta towns like Sacramento, all need river water to preserve the water level, for inland ports, and to prevent salt water from intruding too far into the Delta, killing ag land. So, keeping fresh water in the Delta brings Delta communities, Delta ag, fishing, and environmental groups together to oppose the unraveling of a plan that would preserve the freshwater nature of the upper Delta.
(The bill would)…overturn more
than a century of water law and gut important wildlife protections under the
Endangered Species Act – all to benefit a handful of large agribusinesses in
California’s Central Valley.
Conversely, the thirsty taps and salty soils and contaminated wells of the San Joaquin Valley need water to remain profitable. “Agribusiness” here doesn’t refer to running a farm or ranch as a business, but rather refers to corporations who are in agriculture for profit, where the land is not a livelihood, but simply an investment. There is petroleum and manufacturing in the San Joaquin Valley, but the heart of the economy is agribusiness. The SJV counties have chronic unemployment, largely because so much of the work available is seasonal. The area has a high rate of Mexican and Mexican-American residents who do unskilled and semi-skilled labor. The SJV also provides a lot of food to Californians and provides export dollars to the state. The engine for the area is agribusiness, and the fuel for that engine is water.
In 2009 and 2010, hundreds of billions of gallons of contracted water were diverted away from California farms and instead dumped into the Pacific Ocean in the name of the Delta Smelt.
This tragic policy fallowed hundreds of thousands of acres of some of the most fertile and productive farmland in America. It threw thousands of hard-working families into unemployment. It devastated communities throughout the region. And it created the spectacle of unemployed farm workers standing in food lines to receive carrots imported from China -- in a region that just a short time before had produced much of American grown fruits and vegetables.
And it contributed to rising grocery prices that families felt far beyond the Congressionally-created dustbowl of California’s Central Valley. Tom McClintock
Supporters of the bill, most notably the bill’s sponsor, Devin Nunes, claim that the water given to the Delta Smelt, various salmon and the green sturgeon, was, by agreement and contract, water belonging to the agribusiness of SJV. It was given by courts and statutes which had no authority to do so, and the act caused undue hardship for corporations and their laborers.
The Act restores water deliveries that were cutoff by environmental lawsuits and overreaching federal regulation.
The Act recovers the lost water that was dedicated to a failed $1 billion salmon restoration plan.
A Reliable Water Supply
The Act ensures water reliability by restoring long-term water contracts that were curtailed by environmentalists.
The Act ensure a stable water supply by mandating compliance with the water accord agreed to by the State of California, the Federal government, water agencies, and environmental organizations.
The Act streamlines environmental regulatory processes to speed up water reliability projects and transfers.
The Act expands the use of the Central Valley Project to allow water deliveries by non-federal sources.
The Act ends the bizarre effort to protect non-native species and focuses efforts on native species thereby ensuring environmental water is used for a beneficial purpose.
The Act addresses the budget realities faced by all levels of government and terminates the ostentatious and misguided
$1 billion salmon restoration program.
The Act reduces the debt by $300 million by incentivizing early pay-off of the Central Valley Project federal loan.
The Act establishes transparency and accountability measures to protect taxpayers from frivolous spending on failed environmental projects.
Secures All Water Rights
The Act protects and secures all water rights that are senior to federal water rights.
The Act settles a long standing dispute over area-of-origin water rights.
The opposition claims that the bill short-circuits the processes which have traditionally determined water and environmental policy.
In addition to a blatant water grab, HR 1837 also creates sweeping exemptions from federal laws protecting our water and pre-emptively prohibits state lawmakers from striking a consensus-driven compromise. It would be more accurate to call HR 1837 the State Water Rights Repeal Act.
This bill also destroys California's 2009 comprehensive water package by isolating the Delta. The state's dual goals of water supply reliability and ecosystem restoration cannot be met if this bill becomes law.
But bill supporters deny water rights are being denied:
Opponents say, “this pre-empts state water rights.” It doesn’t pre-empt state water rights – it specifically invokes and protects state water rights against infringement by any bureaucracy – local, state or federal – a legitimate Constitutional function of the federal government established under the 14th Amendment and made essential by the terms of the state-approved joint operating agreement of these inter-twined water systems. -McClintock.
Environmental groups claim the bill would strip protections from the threatened Delta fish. However, supporters point out the bill would allow bass and other non-native predator fish to be fished out, protecting the Delta Smelt and salmon varieties. Water given over to some salmon restoration would be reclaimed on the basis that the salmon simply aren’t going to come back, and the project failed. At the same time, the National Marine Fisheries Service has just determined that the Army Corps of Engineers has to do something to either remove or otherwise mitigate two of the lower Yuba river dams, including Englebright.
The state of California opposes the bill, partly because it unwinds some of the agreements and expectations of recent water bills and leaves proposed changes to the Delta in doubt. The state also objects to the feds over-riding California environmental laws.
HR 1837 has passed the House, but its future remains questionable in the senate, and Diane Feinstein has come out against the bill. The subject is a delicate one for Feinstein, partly because she receives large campaign contributions from both SJV agribusiness and environmental groups. It is likely that Feinstein will simply swamp the bill and instead insert enough language into some other, certain to pass bill to calm SJV farmers and Delta and envirionmental supporters.
The other possible outcome is that environmental groups might find it more difficult to create public policy through the courts. If the courts interpret environmental law too strictly, Congress will attempt to over-ride them. And that’s likely to PO some judges. If the act passes, lawsuits are assured.
In the end, it’s the same to us, because both groups want all the water they can wring from the north, but it might signal a trend of Congressional intervention not only in water distribution in California, but other kinds of transactions, too.
See Nunes’ case for the bill HERE
Below: the section of the bill which preserves are of origin water rights, whatever the hell those are.
SEC. 401. WATER RIGHTS AND AREA-OF-ORIGIN PROTECTIONS.
Notwithstanding the provisions of this Act, Federal reclamation law, or the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)--
(1) the Secretary of the Interior (`Secretary') is directed, in the operation of the Central Valley Project, to strictly adhere to State water rights law governing water rights priorities by honoring water rights senior to those belonging to the Central Valley Project, regardless of the source of priority;
(2) the Secretary is directed, in the operation of the Central Valley Project, to strictly adhere to and honor water rights and other priorities that are obtained or exist pursuant to the provisions of California Water Code sections 10505, 10505:5, 11128, 11460, and 11463; and sections 12200 to 12220, inclusive; and
(3) any action that affects the diversion of water or involves the release of water from any Central Valley Project water storage facility taken by the Secretary or the Secretary of the Department of Commerce to conserve, enhance, recover, or otherwise protect any species listed under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) shall be applied in a manner that is consistent with water right priorities established by State law.