It’s going to be a fight’

By Alex Breitler
Record Staff Writer

Posted Jul 16, 2017 at 1:28 PM

Some call it political theater. Others call it a serious threat.

Whatever the prognosticators say, the latest effort by south San Joaquin Valley Republicans to wring more water out of the Delta is undeniably ambitious.

A bill that cleared the House of Representatives last week requires the Delta to be governed by 20-year-old water quality standards that scientists say are inadequate for the estuary’s freshwater ecosystem. It places new roadblocks before the legally required restoration of the San Joaquin River, which normally runs dry upstream of Stockton. And it takes a hatchet to a 1992 law, signed by President George H.W. Bush, that redirected some water used by farmers back into rivers to help struggling fish species.

Maybe larger than any of these, the federal bill interferes with California water law, expressly forbidding the state from imposing any restrictions on water rights in order to protect endangered species or provide public benefits. The so-called “Public Trust Doctrine” that is observed in California traces all the way back to ancient Roman law.

Congressional Republicans, who represent agricultural areas that are heavily dependent on water exported south from the Delta, have been trying for years to push legislation that will crank up the pumps.

This effort, some say, goes even further.

“I think it’s really bad policy to have Washington dictating water rights in California,” said Dante Nomellini, a Stockton attorney who represents farmers in the Delta, who are opposed to exporting more water.

“The Western states over the years have tried to protect states rights. These guys are running roughshod over it.”

Looking forward

The question, Nomellini said, is whether enough conservatives in the Republican-controlled Senate will come down against the bill because they don’t want to interfere with states’ rights — traditionally a Republican value.

Also working against the bill is that both of California’s Democratic senators oppose it, which may sway even their conservative peers. Gov. Jerry Brown also has voiced his displeasure.

The outcome in the Senate is critical. There’s a new man in the White House this year, and President Donald Trump has vowed to open the spigot for San Joaquin Valley farmers.

Richard Frank, director of the California Environmental Law & Policy Center at UC Davis, said in an email to The Record last week that he believes Trump is “virtually certain” to sign the bill should it clear the Senate. But he put the odds of that at no better than 50 percent.

Earlier this summer, Frank wrote a blog post blasting the newly passed bill, known as H.R. 23. He called it a “cynical effort to degrade California’s environment in order to accommodate well-heeled water interests.”

The bill, he wrote, “exposes the hypocrisy of House Republicans, who frequently advocate for states’ rights and, conversely, against increased federal authority.”

With more than 3 million acres of irrigated farmland, the San Joaquin Valley sometimes is called the breadbasket of the world. But some farmers there, by virtue of junior water rights held by the state and federal water projects that allow them to irrigate their fields, are among the last in line for water.

Only in the wettest of years — like 2017 — is there enough for everyone.

Protections for endangered fish such as smelt and salmon also sometimes have reduced water deliveries to the farmers. The new bill bypasses those federal Endangered Species Act protections.

In a hearing on the floor of the House on Wednesday, Republicans called for more water storage and criticized what they consider “wasted” water flowing to the Pacific Ocean, especially this past winter.

“We feed the nation,” Rep. David Valadao, R-Hanford, said. “Everyone around the country should pay attention. This (issue) affects their food supply.”

Other impacts

It affects the Delta and its ecosystem as well, though. Scientists say that so much of the Delta is diverted that the estuary faces drought-like conditions even in years when precipitation is normal.

Also in the lurch are Valley wildlife refuges. The 1992 Central Valley Project Improvement Act put refuges on equal footing as some farmers for water from the Delta. That would be altered under the new bill, potentially leaving some refuges completely dry at times, representatives with the Audubon Society and other wildlife groups wrote to Congress.

“There are dire implications of this new language for the hundreds of species that rely on Central Valley wetland habitats,” the groups wrote.

Rep. Jerry McNerney, D-Stockton, opposed the measure Wednesday while Rep. Jeff Denham, a Republican who represents south San Joaquin County, voted in support.

In an interview Friday, McNerney said he believes the Republicans were “emboldened” after working out a controversial deal with U.S. Sen. Dianne Feinstein last year that allows for more Delta pumping under certain circumstances. That measure, which was not nearly as aggressive as the current House bill, was signed toward the end of the Obama administration.

This time, Feinstein has said she is opposed. And McNerney said he doubts the latest bill will clear the Senate in its current form.

But it is possible, he said, that bits and pieces will be attached to other pieces of legislation.

“This is a perennial problem for us, but we’re going to keep on it,” he said. “It’s going to be a fight.”