Notes on the June 13 Congressional Subcommittee on Water Hearing

DOG AND PONY SHOW, PART TWO

   On June 2, Rep. Tom McClintock, the new Republican chair of the House Subcommittee on Water and Power Resources, held a hearing on a proposed bill, H.R. 1837, by Reps. Devin Nunes (sponsor), Kevin McCarthy and Jeff Denham (co-sponsors), all Republicans, that would turn California’s Water World upside down. As I predicted in an earlier blog, that June 2 hearing  was a dog and pony show full of half-truths, misrepresentations and obviously one-sided.
 Nunes’ bill would (1) strip state and federal Endangered Species Act(s) protection for the Bay-Delta Estuary allowing the massive federal Central Valley Project (CVP) and the State Water Project (SWP) to operate virtually unfettered even if harming the Delta, (2) unravel a court-approved settlement on San Joaquin River restoration, (3) eliminate a 109-year old Reclamation law requiring federal agencies to defer to state water law; (4) move the Westlands Water District to the head of the bucket line ahead of senior water rights holders, and (5), require senior water rights holders, especially Delta riparians, to give up property rights in their water supplies in order to meet Delta ecosystem flow standards. 
 McClintock allowed the Democrats on the subcommittee to call only one witness (California Resources Secretary John Laird) at that June 2 hearing, so they invoked a House Rule (Rule 11) which required McClintock to call a second hearing in which the minority party could put on its own witnesses.

 On Monday morning, June 13, Rep. McClintock, irritable and grumpy, called the second hearing to order.  (You can watch the video of the one-hour hearing here:  http://naturalresources.house.gov/Calendar/EventSingle.aspx?EventID=244812.)
McClintock was the only Republican present.  Denham, who is on the subcommittee, was missing in action.  Nunes and McCarthy, who are not on the subcommittee but are sponsors of H.R. 1837, were also not to be seen.  Rep. Jim Costa, a Democrat who represents the Westlands and was nearly defeated in the last election, also did a disappearing act, leaving McClintock and Democrats  Grace Napolitano and John Garamendi as the only subcommittee members present.
Fortunately, Rep. George Miller, who is not on the subcommittee but many years ago served as the subcommittee chairman, and who remains extremely knowledgeable on California water issues, was present and permitted to participate. He asked some of the most cogent questions, and made some of the most penetrating remarks, during the 57-minute hearing.
The first witness, Will Stelle, Regional Administrator of the National Marine Fisheries Service, warned the current Delta water delivery system is at “imminent risk of catastrophic failure” and that Delta fisheries have been in “steep collapse” for the past decade.
Stelle’s remarks paralleled those of U.S. Bureau of Reclamation Michael L. Connor, (The Honorable Michael L. Connor) who testified at the June 2 hearing, that the Obama Administration “does not believe that HR 1837 will advance the spirit of cooperation and consensus that is essential to making progress on California water issues today.”
Stelle, noting that H.R. 1837 is premised on the 1994 Bay-Delta accord, which was cooked up by former Gov. Pete Wilson, Southern California Developers and western San Joaquin Valley agribusiness, stated “Physical and biological conditions in the Delta have changed dramatically since 1994.  Trying to find a remedy based on 1994 conditions will not work.”
 The next witness, Tony Willardson, Execute Director of the Western States Water Council based in Murray, Utah, made comments likely to give Republican congress members outside California pause.
Willardson, noted his Council is a non-partisan government  organization representing 18 western states, with members appointed by governors (some of them Republican governors) and that most members were concerned about the Nunes’ bill precedential impact on state water rights.
Willardson said the council had not had a chance to review H.R. 1837 in detail but he was concerned that the Nunes bill was antithetical to principles of federalism, contending “We need to defer to state water law” when making water resource decisions, as required by Section 8 of the 1902 Reclamation law, as amended.
 McClintock had no questions for Willardson, despite the obvious implication that H.R. 1837 is a frontal assault on both state water rights decision-making authority and private property rights, the bedrock of conservative Republicanism.
 The next witness, John Herrick, Counsel and Manager of the
South Delta Water Agency in Stockton, made some of the most important points of the day.
“Each year we [Delta landowners] suffer the adverse impacts” of the Central Valley Project and the State Water Project, Herrick said.  He said the Nunes bill “seeks to limit the responsibility of exporters in providing water for fisheries.”
Herrick pointed out that during the 1928-1934 drought, it was later determined during the planning stages of the CVP that the Sacramento Valley and San Joaquin Valley watersheds produced, on an average annual basis, somewhere around 17.6 million acre-feet. Herrick said the in-basin needs of the two watersheds, during that 1928-1934 period frame, excluding exports, were 25.6 million acre-feet: meaning the modern water delivery system has built into it an eight million acre-foot shortage during drought times.
Herrick said, “Now under various circumstances that shortage could, of course, be zero or there could be water enough for exports. But the point is, the [state and federal] projects’ water supply is limited if you assume that the areas of origin, or where the water comes from, have a right to get the water before it is shipped somewhere else.”
Herrick said only water in excess of the needs of areas of origin was supposed to be exported from Northern California. Specific state statutes require projects not to impair area of origin rights. He said H. R.1387 “completely undoes” those laws.
Herrick noted the State Water Resources Control Board, the Department of Fish and Game, the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, and the National Academy of Sciences “have a firm position or believe” that the Delta ecosystem needs more water, not less, to regain its health.
“H.R.1387 limits the amount of water that one group must provide and thus shifts the burden for additional water to everyone else. Now everyone else just happens to be all of the superior water right holders in California so that in-Delta diverters, upstream diverters on the rivers, area of origin people, all will now be subject to decreased water supply because the junior most parties are limited, if this passes, in what they have to contribute.  That’s a monumental change in both California law and state and federal policy.  It completely undoes the water rights system in California,” Herrick said.
He added, “This is especially egregious in that it’s relying on a 17-year-old agreement that set forth certain actions that were negotiated, not determined to be what was actually needed. So we go back 17 years in time, limit the export projects’ responsibility, and then the State Water Resources Control Board will go forward, find that more water is needed, and will order everybody else to supply that water. This bill is contrary to the idea that everybody should mitigate their own impacts.”
In the recent drought, Herrick said, the CVP and SWP simply ran out of water that was available for export. At this point, McClintock apparently did not want to hear anymore and cut off Herrick at the allotted five-minute mark.  McClintock had no questions for Herrick.
 Dave Bitts, President of Pacific Coast Federation of Fisherman’s Associations of Eureka, was the last witness. He noted Rep. Nunes has suggested salmon fishermen could turn to other species such as tuna.
“I would briefly like to address some statements that were made in the last subcommittee hearing by H.R. 1837’s principal author [Nunes]. I can personally attest to the fact that when the salmon closures were imposed in 2008 and 2009 and for most of the 2010 season, I, like most salmon fishermen, did not have another fishing option to fall back on,” Bitts said.
He added, “It is true the closures were made by the government. That is because the run predictions – which turned out to be accurate – were for a very low stock abundance. While our fishing did not cause the resource collapse – as most scientists will attest – fishing on those low numbers could exacerbate an already bad situation, putting the future of our fishery at serious risk. The government’s closure decision was the responsible one and we supported it. Moreover, even if they had allowed fishing to occur there were simply not enough fish to provide for viable commercial and recreational fisheries in 2008 and 2009.”
“The statement [by Nunes] that salmon fishermen had other fisheries available to them is akin to saying growers don’t need water, because they can dry farm,” Bitts said.  “We all know how economically feasible that is.”
Bitts then rebutted Nunes’ earlier assertions that there may have been fraud in the salmon disaster relief program adopted by Congress during 2008-2010.
“The $250 million in salmon disaster relief money Congress appropriated for the West Coast salmon fishery was intended to compensate for losses attributed to the salmon closures. The money available was not just to fishermen, but to fish processors and other fishery-related businesses, including those in the recreational fishing industry. The formula for allocating the funds was developed by the Oregon Salmon Commission and the California Salmon Council, with the final approval coming from the Office of Management & Budget, attempting to ensure that those whose businesses were harmed by the salmon closure were at least partially compensated for their losses – and no one else. The salmon disaster appropriation ended up covering three years of salmon disaster declarations – 2008, 2009 and 2010”  Bitts said.
“I am at a loss about the accusations of fraud regarding the disaster money. I have heard of no instance of an individual and/or business being awarded disaster funds due to fraud. I have heard from a lot of people, however, complaining that they did not share in the money because they could not document any loss. If Mr. Nunes has any evidence of the fraud he has claimed then I’d like to know about it, as I’m sure the commission and council would that took great pains to make sure the allocation was fair, and claims were well documented. More important, if Mr. Nunes has evidence of such fraud then I suggest he submit it to the federal and states’ attorneys general for prosecution. Absent any evidence or proof, allegations of fraud are wantonly irresponsible, if not libellous.”
McClintock had no questions for Bitts.  Before questioning began, McClintock, reading from a statement, asserted the subcommittee, at the June 2 hearing, conducted a “balanced, bipartisan hearing” omitting to say there were no representatives of Delta farming, Northern California counties of origin, Native American tribes, salmon fishing or recreational fishing.
McClintock also mentioned that two of the four Democratic members of the subcommittee had “not bothered” to even attend the June 13 hearing, again conveniently failing to say that no Republican members of the subcommittee attended the hearing, including Denham, a co-sponsor of H.R. 1837, and that Nunes, author of the bill but not a subcommittee member, also failed to show up.
“What I find the most disappointing is the fact that not a single new argument has been raised in the testimony of the minority’s additional witnesses today that was not already thoroughly covered in the bipartisan hearing of June 2,” McClintock read from a prepared statement.   The physic question arises that if McClintock is reading from a prepared statement how he could have known what the witnesses would testify to (excluding their prepared submitted remarks) in response to questions from subcommittee members.  Is McClintock psychic?
After that bizarre statement, McClintock then claimed, “Simply repeating points that have already been thoroughly debunked by earlier testimony does not add to their weight.  Because we have already covered this ground I have no questions of the witnesses.  I merely wish to apologize to those assembled here for the fact that this subcommittee’s been required to waste everybody’s time.”
Say what? The very valid legal argument that private property rights in Delta water could be usurped without compensation by Nunes’ bill had been thoroughly “debunked” at the earlier hearing? Can the chairman point out where in the June 2 hearing record that “debunking” occurred?
Reacting, Rep. Napolitano, who represents a Southern California urban area, said she found McClintock’s comment “interesting” but because she had only five minutes for questioning she would not respond to his claim that any challenges to the legality of the bill had been “debunked.”
More on the debunking contention.  Section 108, paragraph (b) of H.R. 1837 states:
“ (b) Preemption of State Law-
(1) STATE LAW PREEMPTION- Neither the State of California, an agency of the State, nor any political subdivision of the State shall adopt or enforce any requirement for the protection or conservation of any species listed under the Endangered Species Act for the operations of the Central Valley Project or the California State Water Project that is more restrictive than the requirements of this section. Any provision of California State law that authorizes the imposition of conditions or restrictions on the operations of the Central Valley Project or the California State Water Project for the protection or conservation of a species that is more restrictive than this section is preempted.”
In his prepared remarks at the June 2 hearing, Kern County Water Agency General Manager Jim Beck stated: “In recent weeks there has been some discussion among attorneys in California about the adequacy of the language of Paragraph 108(b). KCWA is participating in those discussions and will work to settle that legal question. If there is a need for amendments to the current language KCWA will work with the authors and the Subcommittee to ensure the language of Paragraph 108(b) is adequate to accomplish the purposes of HR 1837.”
In their prepared remarks at the June 2, neither East Side farmer Kole Upton nor Westlands general manager Thomas Birmingham specifically addressed whether H.R. 1837 could infringe upon private property rights in water owned by senior water rights holders in the Delta and Northern California. I should state I have not reviewed the written transcript of the June 2 hearing so I am unaware if there was any discussion of private property rights in water being devalued by Nunes’ bill.
So what exactly has been “debunked?”
Rep. Garamendi remarked “This piece of legislation has several problems. Notably it overrides state water rights as suggested by the western states water council . . .”
Rep. George Miller, however, had the last say, opening with this comment, “It is very difficult to describe the extremism and the radicalism of this legislation when you look at the body of law governing western water . . . to now come in and simply set off this explosion and decide that all of this law will be pushed aside.  One district [Westlands] with an absolute entitlement mentality will be able to take whatever they deem to be necessary for them to take and that everybody else will pay the price for that.”
Miller closed with this:
“I find it rather ironic that some of the most conservative members of Congress who hate the federal government are now using the federal government to bash private property rights and the value that people have in these farms and ranches in the foothills, north of the Delta . . . The idea that you would now just, in a fell swoop here, on a couple days’ hearing, that you would sweep away the value, the investment they have made in that, the reliance they have on those water rights, the federal government would step in with this piece of legislation and extinguish that right . . . So here you have these members of Congress using the federal government as a vehicle to extinguish the rights of other people, and the property rights that they’ve had in some cases in excess of 100 years . . . This is really a very radical and extreme proposal. It’s stunning in its breadth. Again, that a small group of people could get in a room and decide that they would take whatever anybody else has so they could be made whole no matter what the situation is and their neighbors would pay the bill.”
Miller apparently hit a nerve with the somnolent subcommittee chairman, who quickly responded, “The chair would assure the gentleman that no legislation will clear this subcommittee that in any way undermines local area of origin water rights as long as the chair has anything to say about it.”
 McClintock, however, made no mention whether individual senior water rights holders in the Delta and Northern California could also lose some of the value of their water  rights if they are forced by the State Water Resources Control Board to supply ecosystem needs in the Delta while Westlands and other junior water exporters remain immune to state water board decisions.
So, Chairman McClintock, I’m assuming you will quickly demand additional language in H.R. 1837 that absolutely clarifies no private property rights will be infringed and state area of origin laws will not be impacted.
 The good news is that the Obama Administration and both of California’s Senators opposed H.R. 1837 which means it will almost certainly die a quiet death in the Senate. If Rep. McClintock wants to talk about “wasting time” maybe he can address the issue of how much time will be wasted on a radical bill that is going nowhere.