White House Will Not Appeal California Water Ruling

August 28, 2002

The Bush administration has declined to appeal a federal court ruling that potentially provides more water to Central Valley agriculture at the expense of Northern California fish and wildlife.


The action by Secretary of the Interior Gale Norton leaves unchallenged a February ruling by Fresno federal District Judge Oliver Wanger on a lawsuit filed by the Westlands Water District, a 600,000-acre irrigation district in the western San Joaquin Valley.


Wanger's ruling in favor of Westlands could reduce the amount of water released for fish and wildlife in the San Francisco Bay/Sacramento River and San Joaquin River Delta system.


Westlands' suit challenged the 1992 Central Valley Water Project Improvement Act that the Clinton administration had actively supported. The act provides 800,000 acre-feet of water annually for bay/Delta fishers -- water that formerly flowed to farms and cities.


The district contended that the way "environmental" water has been accounted for was unfair, and that as a result, as much as 300,000 additional acre-feet flow through the bay annually.


Following its decision to support Wanger's ruling, the Department of the Interior will now devise new rules for environmental water releases.


"We are pleased with Interior's decision and are looking forward to receiving the new policy," said Alfreda Sebasto, a spokeswoman for Westlands. "The prior accounting decision was unmanageable. We couldn't plan adequately. And because we didn't (have water), we had to fallow a good deal of land."


But environmentalists claim that revising the rules could devastate bay/Delta fisheries, which have benefited in recent years from the water releases provided by the Central Valley water project.


"The problem is that you can technically account for the full 800,000 acre- feet but still have a shortfall," said Barry Nelson, a senior policy analyst for the Natural Resources Defense Council. "It's all in how it's written and implemented."


Environmentalists insist that all the water for fish and wildlife must flow through San Francisco Bay -- and that if that were to change, it would reduce the annual environmental allotment by 200,000 to 300,000 acre-feet.


"Under the Westlands scenario," Nelson said, "the U.S. Bureau of Reclamation may want to deliver 20,000 (acre) feet of water from Shasta Reservoir to San Luis Reservoir near the Delta to hold for irrigation users. But fisheries biologists may want to hold off the Shasta releases for two weeks to allow migrating salmon smolts to swim unharmed past the San Luis pumps in the Delta."


If the bureau acquiesces and the water is delayed, Nelson said, that 20,000 acre-feet would then count as "environmental" water -- even though the water would ultimately "go to cotton, not fish."


But Jeff McCracken, a spokesman for the U.S. Bureau of Reclamation, said the current rules are not exactly equitable for agriculture.


"Say we let out 20,000 (acre) feet from Shasta in March for fish, and we have a sudden storm that fills the reservoir back up," McCracken said. "Under the current rules, we'd have to start from square one because there has been no drawdown of the reservoir. Technically, there would have been no environmental releases to be counted against the 800,000 feet. This kind of thing has happened in the past."


Wanger's decision, said McCracken, "doesn't change the law -- it merely goes back to what the law says. And that means 800,000 acre-feet for fisheries and wildlife under the (Central Valley water project) -- no more, no less."


The Central Valley water project forms the legal and fiscal foundation for CalFed, a joint state and federal agency formed after the passage of the act to assure a fair distribution of the state's water and avoid the enervating rounds of litigation that had previously characterized California's long- running water wars.


With Norton's decision, Nelson said, CalFed is in danger of unraveling. "This is a classic rollback," he said. "Federal cooperation with the state may have taken a fatal blow. The U.S. Fish and Wildlife Service and the National Marine Fisheries Service said in their record of decision that if there is enough water for fisheries, supplies to users will be guaranteed. But without that 200,000 to 300,000 acre-feet, all guarantees are off. (Environmentalists) will head to the courts."


McCracken said CalFed is still intact. "It's not going to go belly-up," he said. "We're where the law says we need to be. Besides, the (Central Valley water project) provides for an environmental water account (a contingency plan to buy water from other users) that can provide water above the 800,000 acre-feet requirement. We've used as much as 500,000 feet from the account in the past."


But the water account isn't worth much if there's no water available, said Nelson.


"That was the case this year," he said. "There wasn't enough water in the system to meet the (legal requirements) of the account. And if Wanger's ruling goes through, that's going to be the norm."

Source:

San Francisco Chronicle

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