Westlands Drainage Delay No. 389

               Nearly 60 years ago the U.S. Bureau of Reclamation began working on a drainage system for the problem-plagued high selenium soils of the western San Joaquin Valley.  On Thursday (June 30), the Bureau asked if U.S. District Court Judge Oliver Wanger would grant a request for another four months to allow Reclamation to consider a proposal by the mammoth Westlands Water District to change the starting point of construction of the latest version of a drainage system.

Following an hour-long hearing, Wanger granted the Westlands’ motion over the protests of the older federal irrigation districts which are downslope, and to the north, of the Westlands, which is located in western Fresno and Kings counties.

Attorneys for the Central California Irrigation District, which stretches from near Mendota to Crows Landing in Stanislaus County, and the adjacent Firebaugh Canal Water District argued that to grant the Westlands request would force the Bureau to deviate from a court scheduling order and the Bureau’s own 2007 plan (called a Record of Decision or ROD) which called for installation of a drainage system at the north end of the Westlands first.

To say that progress on the Westlands drainage problem has been glacial in pace would be incorrect because glaciers now are melting as fast as an Anthony Weiner underwear photo moves around the Twitter universe.  So let’s just say progress, if that is what it actually is, is made at a snail’s pace and is measured in decades. 

To refresh your memories, in 1955 the Bureau unveiled a plan for a $7 million earthen canal to carry Westlands’ salt-loaded drainwater to the eastern edge of the Delta.  The San Luis Unit of the federal Central Valley Project was approved by Congress in 1960 and by then a much more expensive cement-lined drain canal to the Delta was envisioned.   Downslope farming interests and Delta/Bay area farming interests opposed completion of a drain to the Delta and by the mid-1970s construction of the San Luis Drain was halted in a wetlands area north of Los Banos in Merced County and evaporation ponds were built to hold the water.  The end of the line for the drainwater was the Kesterson National Wildlife Refuge.

In the early 1980s, Reclamation officials learned the drainwater contained the trace element selenium. It had entered the Kesterson food chain, killing all but one fish species and triggering grotesque deformities in bird embryos. There was a huge public outcry and in 1985, the Reagan Administration announced the Kesterson ponds would be closed.

Famed Reclamation Commission Floyd Dominy, who headed the dam-building agency from 1959 to 1969, later said he never should have commenced water deliveries to Westlands before resolving the drainage problem.  “I made a terrible mistake by going ahead with Westlands at the time we did," he said.

In 1998 Westlands sued the federal government contending the 1960 Congresssional act and its contracts with Reclamation required the federal government to build a drain.  Judge Wanger agreed but reaffirmed Westlands would have to pay for a drainage system.  By the late 1990s estimates of a bird-safe drainage disposal system was estimated at $1 to $3 billion for 600 Westlands growers.

In 2000, the Ninth Circuit Court of Appeal affirmed Wanger’s conclusion that a drainage system had to be built but said Reclamation did not necessarily have to build the drain canal to the Delta as authorized in the 1960 San Luis Act.  Instead, the Ninth Circuit said, Reclamation could experiment with other methods of treating the drainage, including reverse osmosis, recycling, and using the tainted drainwater to grow salt-tolerant crops.

The Ninth Circuit ruling stated:

“[W]e agree with the district court that the Department of Interior must act to provide drainage service. The Bureau of Reclamation has studied the problem for over two decades. In the interim, lands within Westlands are subject to irreparable injury caused by agency action unlawfully withheld.   Now the time has come for the Department of Interior and the Bureau of Reclamation to bring the past two decades of studies, and the 50 million dollars expended pursuing an “in valley” drainage solution, to bear in meeting its duty to provide drainage under the San Luis Act.” The court ruling said the government must “act promptly” and “without delay” to find a solution.

That was 11 years ago.  Like I said, things move slowly in the Drainage World.

In 2007, the Bureau Record of Decision (ROD) considered several different solutions. One solution, which could cost $2.6 billion,  called for retiring 140,894 salted up acres of Westlands acreage and another 14,467 acres in the federal water districts north of Westlands, an area known as the Grasslands.  Drainage facilities would be built in both the Westlands and the Grasslands area.  Economic losses of this proposal were estimated at $10.2 million a year.  A second option, bitterly opposed by Westlands, called for retiring all 253,894 selenium-tainted acres in Westlands and build drainage and treatment facilities for 66,533 acres of impaired land in the Grasslands area.  The economic gain would be $3.6 million a year.

Not surprisingly, the Bureau, prodded by Westlands and its Congressional allies, chose the money-losing option which conflicted with federal rules requiring agencies to select options with the greatest overall benefit.  To overcome this little problem,  Department of Interior official Bennett Raley, during the George W. Bush Administration, issued a special exemption.

However, the incoming Obama Administration rejected that scheme and the Bureau tried yet again, coming up with the latest version that, until Thursday’s hearing before Wanger, called for drainage facilities to be built first in the northern area of the Westlands. Westlands then asked Wanger to permit Reclamation to change the schedule to allow drainage facilities to first be built in the central area of Westlands.  The reason? The northern area only has 18,500 acres under cultivation and the central area has approximately 55,600 acres in production.  Drainage facilities in the central area would bring immediate relief to two-and-a-half times the acreage of the northern area. That would be good for Westlands but not necessarily for farmers down the hill.

          But Paul Minasian, attorney for the federal districts to the north of Westlands argued in his written opposition, that the Bureau of Reclamation had committed  to eliminating drainage discharges “to the San Joaquin River as soon as practicable” and switching the starting point for the drainage facilities’ construction would further degrade his districts’ farmlands and allow drainage degradation of the lower river to continue and.

          Minasian also argued that “[w]hether the lands within the northern subunit of Westlands are currently irrigated or were irrigated in the past and have been retired, the subsurface aquifers are saturated and poor quality water and pressure are moving downslope in the shallow aquifers and contributing to the drainage loads in the San Joaquin River.”

          Minasian added “the Northerly area downslope of portions of the northern subunit of Westlands receives this subsurface water from higher elevation lands within the northern subunit of Westlands.  These combined drainage waters pass through the Grassland Bypass system into the San Joaquin River.  Abandoning the drainage efforts in the northern subunit of Westlands will eviscerate the Bureau’s stated goal to eliminate discharges to the San Joaquin River as soon as practicable.”

          Minasian pointed out the Bureau’s regional director had stated “the principle reason we chose to initiate construction in the northern subunit of Westlands is because our existing feasibility design provides a fully-functional drainage system within the cost ceiling limitations, which enables us to proceed with the final design and construction with minor modifications to the existing feasibility design.  However, the existing feasibility design for a fully functional drain system in another subunit of Westlands covers a much larger service area, includes significantly more facilities and exceeds the existing cost ceiling limitations.”  (Emphasis added.)

          However, Wanger turned a deaf ear to these arguments.

          In the past Westlands officials have denied their degraded shallow groundwater is migrating downslope to the San Joaquin River. Their attorney denied it again at the Thursday hearing.

          Wanger expressed concern that the Bureau might lack funding to switch the starting point for drainage facilities to an area two-and-a-half time bigger than the northern area. An Interior Department attorney said the 120-day delay would allow Bureau officials to assess the feasibility of the Westlands proposal to change starting points and determine whether Congressional appropriations were adequate.  The 2000 Ninth Circuit ruling had said the district court should not interfere with Reclamation’s discretionary authority to implement a drainage solution in the manner it chooses.

            Still undecided after all these years is how Westlands’ 600 growers will pay for a drainage system that may cost up to $2 billion. Westlands has been negotiating a repayment contract with Bureau officials in Sacramento with virtually no media coverage.  Westlands still owes an estimated $470 million for the irrigation water delivery facilities built back in the 1960s and purportedly wants a considerable portion, if not all, of that debt forgiven before agreeing to a drainage repayment contract.

          Have I mentioned that the latest drainage “fix”, wherever they start, includes a never before tried demonstration water treatment plant to detoxify the drainage. And the latest “solution” also includes evaporation ponds for the nastiest drainwater.  Evaporation ponds?  Aren’t those what killed the Kesterson National Wildlife Refuge?  Are we in some kind of time warp on this drainage debacle where Reclamation keeps circling back to the same failed solutions?