Mark Twain once characterized California as the place where “Whiskey is for drinking, and water is for fighting over.” Unfortunately, that has never been truer than with the recent re-ignition of California’s festering water wars by Big Agribusiness.
We are not talking about small, independent, salt-of-the-earth farmers. California Central Valley agribusiness has not been based on small-scale, independent, mom-and-pop farming operations for many decades. The whole agricultural production system of the California Central Valley was consolidated and corporatized long ago. The largest Central Valley Project (CVP) “farmer,” for instance, is Richland Oil. Most real farmers still there are just modern-day indentured servants.
The politically powerful Westlands Water District, for instance, has a very junior water right within the “first-in-time, first-in-right” prior appropriations-based California water rights system. In drought years they would ordinarily get very little water. Nonetheless, in recent years they have used their political power to find ways to upend California water law, and make themselves, in effect, a senior CVP water priority contractor.
2016 WIIN Act Water Delivery Mandates
The most recent push by the Central Valley’s Big Ag groups to change California’s water allocation system in their favor came in the US Congress, using the last major drought as their excuse. President Obama signed the Water Infrastructure Improvements for the Nation (WIIN) Act on December 16, 2016 (Public Law 114-322) saying, “These projects will help assure that California is more resilient in the face of growing water demands and drought-based uncertainty.”
Under the WIIN Act, Sec. 4002(a), the federal Bureau of Reclamation (“BOR”) was Congressionally required to: “manage reverse flows in the Old and Middle Rivers [by the San Francisco Bay Delta federal water pumps] at the most negative reverse flow rate allowed under the applicable biological opinion to maximize water supplies for the Central Valley Project….” There is a similar Sec. 4001(a) mandate to provide “the maximum quantity of water supplies practicable to Central Valley Project [contractors]….” This Congressional requirement to “maximize” water to CVP contractors was a great political victory for Central Valley water users – but the implementation battle then shifted to the following Administration.
Wooing the Current Administration
In early 2016, in the midst of region-wide record drought, then-candidate Donald Trump came to the California Central Valley to campaign, promising corporate farmers there that he would “solve their water problems,” apparently completely buying into their long-standing but false narrative that their “water contacts were being constrained” not by record-breaking drought, but because of federal wildlife protection laws, and that huge amounts of water were “being wasted by being allowed to flow to the sea” by remaining in the river.
After the election, a Presidential Memorandum was signed (Oct. 19, 2018, Promoting the Reliable Supply and Delivery of Water in the West) directing various federal agencies to “work together to minimize unnecessary regulatory burdens” on western water purveyors, and to fast-track various environmental reviews, under unrealistically tight deadlines. Among those fast-tracked was the development of a new water plan to protect ESA-listed salmon (e.g., spring-run and winter-run Chinook) moving through the California Central Valley (CVP) Water Project. The previous 2009 BiOp had been thrown out in a lawsuit PCFFA was a plaintiff in, as “arbitrary and capricious.”
Then in a Westlands-engineered political coup, on April 11, 2019, David Bernhardt, a former lawyer and lobbyist for Westlands Water District, was appointed as US Secretary of the Interior, the agency that controls the federal BOR and the CVP.
Under Bernhardt’s astute political guidance, the President then returned to the Central Valley to sign another Presidential Memorandum (February 19, 2020), directing the federal agencies “to make deliveries of water more reliable and bountiful.” He also signed the new “Record of Decision” formally adopting a new CVP water plan (“Biological Opinion (BiOp)”) intended to guide future CVP water deliveries, in spite of criticisms from many scientists that it was less protective of salmon than the one previously thrown out.
What this Means for West Coast Salmon Fisheries
What none of these Big Ag patrons admit, of course, is that the huge Sacramento-San Joaquin river ecosystem feeding fresh water to the San Francisco Bay Delta keeps highly toxic saltwater intrusions out, and that California’s major salmon runs also needed that fresh water to survive. Those salmon runs support a billion-dollar fishery and thousands of jobs!
They also do not acknowledge that the fresh waters of the Bay Delta not only support multiple and highly productive Delta farms, but are also the source of drinking water for millions of California residents. Those fresh water flows are not in fact “wasted to the sea,” but are essential in keeping seawater intrusions from coming into the Bay and destroying the most economically and biologically important estuary in both North and South America.
The federal government’s ongoing disregard for the enormous value of California’s key salmon runs, demonstrated by its new politically motivated BiOp that allows rampant destruction of their remaining habitat in the California Central Valley, could be the death knell of salmon fisheries all along the west coast south of the Columbia River. In coastal Oregon, for instance, some 50% of all salmon harvested in Oregon’s ocean fisheries are from California rivers, primarily the Sacramento-San Joaquin. The Sacramento-San Joaquin watershed was once the second largest salmon-producing river system in the continental U.S., second only to the Columbia.
This is why PCFFA has challenged the current CVP BiOp as “arbitrary and capricious,” in PCFFA, et al. vs. Secretary Ross, et al, (U.S. Dist. Court of California, Eastern District), Case No: 1:20-cv-00431. We are also joined in that suit by the State of California, in a related case (California Natural Resources Agency, et al, vs. Ross, et al., No. 1:20-cv-00426). Governor Newsom deserves industry appreciation for standing with us to protect California’s valuable salmon runs for future generations of fishermen.
On May 11, 2020, PCFFA and the State of California were granted a Preliminary Injunction prohibiting the BOR from operating the CVP without regard to protections for salmon. We will be heading towards trial in the next few months to again show that this current BiOp is so tilted toward agricultural interests (and so politically compromised) that it too is “illegal, not based on the best available science” as well as “arbitrary and capricious.”
The health of the west coast’s salmon runs is the lifeblood of many coastal communities and matters to our whole industry. It should also matter to our federal government.
Glen Spain is the NW Regional Director and General Legal Counsel for the Pacific Coast Federation of Fishermen’s Associations (PCFFA), and the Institute for Fisheries Resources (IFR), working from their joint Northwest Office, PO Box 11170, Eugene, OR 97440-3370, reachable at: (541)689-2000 or by email to: firstname.lastname@example.org.