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'Stealth' Water Bill Fumbled As Ag Interests Attempt End-Run Around Democracy

The bill would mandate filling the California Aqueduct at the expense of native fish. | Photo: marianne muegenburg cothern/Flickr/Creative Commons License

An attempt by Central Valley water users to tack a complex and controversial water bill onto a federal spending bill seems doomed for now, amid criticism from House Democrats that they've been shut out of the secretive process of drafting the legislation.

At issue is a package of legislation that the Valley's Republican representatives have been trying to pass for a couple of years, now called the Western Water and American Food Security Act. The bill, H.R. 2898, which was introduced by Rep. David Valadao and passed the House in July, would sharply limit the Federal government's ability to protect endangered fish in the Sacramento-San Joaquin river system, and direct the feds to manage the Bay-Delta for maximum water deliveries to the state's two largest aqueducts. The bill would also push studies on new reservoirs and abolish a landmark restoration program for the San Joaquin River.

Advocates for California's wildlife had enough problems with the Act as passed by the House. That bill has languished as Valadao and his House colleagues worked to reconcile their version of the bill with a more environmentally friendly Senate version drafted by Dianne Feinstein. But on Thursday, House Republicans decided late last week to attempt to squeeze a more aggressive version of the legislation into the "must-pass" omnibus appropriations bill -- 92 new pages of proposed legislation by Bakersfield Representative Kevin McCarthy that would increase the peril to California's aquatic critters, including the Delta smelt and Chinook salmon.

The omnibus appropriations bill must pass by Friday to avoid a government shutdown, so it's unlikely McCarthy's suddenly controversial move will succeed.

California's rivers are as choked with litigators as their Florida counterparts are with alligators. In the watershed of the Sacramento and San Joaquin rivers, just about every last drop of water that tries to flow downstream through the Delta and San Francisco Bay to the Pacific has multiple parties claiming it. In theory, according to federal and state environmental laws, the interests of water users such as farms, factories, and suburbs must be balanced against the harms done to California's wildlife when too much water is taken from the state's rivers and streams.

In practice, agricultural and municipal water users will usually fight tooth and nail for every last drop, regardless of any harm to wildlife.

One of the environmental checks on diversions from the Sacramento River has been the federal government's responsibility to safeguard fish species protected under the federal Endangered Species Act. To this end, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service have created a set of policy documents called Biological Opinions that restrict how much water can be diverted from the Sacramento into the Central Valley Project and State Water Project without causing more damage to endangered species than the law allows.

Those Biological Opinions -- "BiOps" -- are intended to provide a scientific baseline to guide operations of the water projects to forestall harm to protected species. There are two BiOps. One, prepared by USFWS, covers the Delta smelt. The other, crafted by NMFS, covers two listed runs of Chinook salmon, the Central Valley steelhead, the green sturgeon, and southern resident orcas.

Both BiOps are controversial, and each has seen more than a decade of legal wrangling and court decisions, with agricultural interests claiming that protecting wildlife -- especially the Delta smelt -- unfairly penalizes water users with less seniority.

That's the context in which the series of bills culminating in Valadao's Western Water and American Food Security Act has struggled toward passage.

McCarthy's new version of that Act proposed for tacking onto the omnibus bill was a bit of a curveball. It's 92 pages of nearly impenetrable detail, likely crafted by consulting attorneys for irrigation districts to provide ways for water users to sue the feds should they restrict water deliveries in the future. Though it's a tough read, that's in part because the bill McCarthy crafted would set specific minimum amounts of water that federal agencies would have to deliver regardless of river conditions.

Decreeing the amounts of future water deliveries by legislative fiat rather than by a careful assessment of scientific fact is bad enough. But in crafting the language of the proposed omnibus rider, McCarthy and his colleagues are said to have carefully excluded wildlife advocates, Democrats, and Representatives from districts surrounding the Bay and Delta from the sausage-making process. And that means that a formidably complex redrafting of some of California's most important, and most controversial water laws would essentially be decided by a voice vote without even holding public discussion -- let alone an Environmental Impact Statement process.

In fact, despite the proposed rider's bearing the name of Senator Dianne Feinstein, who had been working with House Republicans to reconcile those House and Senate bills, Feinstein told the Sacramento Bee on Friday that she hadn't actually seen the language before it was proposed.

"I am told it was proposed in my name, which I did not approve," Feinstein said. "This is regrettable, not only because I believe we remain close to an agreement on a broader bill, but also because it stands in opposition to my desire to do a bill in an open and public manner."California Senator Barbara Boxer pulled no punches in her reaction to McCarthy's move. In a statement released Friday, Boxer said;

"It is outrageous that Congressman McCarthy is making a last-minute attempt to place a complicated and unvetted water bill that impacts millions of Californians on the omnibus at the 11th hour. I agree with Senator Feinstein that this is regrettable and stands in the way of an open and public process, which I have called for all along. Everyone knows that water policy is extremely controversial and I do not intend to support any bill that does not treat all stakeholders fairly and violates landmark environmental laws."

Salmon protection activists were quick to object to the secretive process, pointing out that even without increased delivery guarantees for agriculture, the last two years have been catastrophic for California's fish -- especially the federally Endangered winter-run Sacramento River Chinook salmon, which has seen 95 percent of its offspring fish die in each of the last two seasons.

"This bill was drafted in secret," said John McManus, Executive Director of the Golden Gate Salmon Association. "The salmon fishermen and our Representatives were excluded from the process. That wasn't an accident"

"This bill takes aim at salmon and fishing families throughout the state whose livelihoods hang in the balance," McManus added. "The drought and water mismanagement have already hammered salmon over the past several years. This last minute maneuver from Congressional representatives from the San Joaquin Valley would make that tragic situation worse."

It may well be that McCarthy's attempted end-run has backfired; with Feinstein making it clear she doesn't support an omnibus rider, it'll be a lot harder to get McCarthy's language onto the larger bill. But even if this legislation doesn't sneak through in the omnibus, the issue isn't going away.

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