Sugaring Up the Already Sweet Deal of the Sacramento River Settlement Contractors - Is This How Congress Will "Fix" California Water?
On March 1st, a group of Congressmen from the Central Valley of California wrote a letter to Interior Secretary Salazar complaining about the administration of the largest single block of contract water in the federal Central Valley Project – the 2.2 million acre-feet allocated every year to the Sacramento River Settlement Contractors to grow hundreds of thousands of acres of subsidized rice and other crops in the Sacramento Valley. The letter’s authors include many of those who recently sponsored language in the House Continuing Resolution that would block protections for endangered salmon and other species in the Bay-Delta, threatening to shut down completely the massive state and federal water pumps that provide water to many of their constituents. This scorched-earth approach has been roundly criticized by such “radical environmentalists” as the Kern County Water Agency, Paramount Farms, and the Metropolitan Water District of Southern California. Now, these Central Valley Congressmen are at it again – pursuing a wrong-headed approach that threatens to reduce water deliveries to their own constituents and harm everyone else in the state who cares about improving the predictability of water supplies and the health of the Bay-Delta.
The thrust of the letter is a request to place the Settlement Contractors above the law – to exempt them from having to provide a single drop of water to help restore the battered Bay-Delta ecosystem from which their Sacramento River pumps divert water. It’s hard to imagine a reasoned policy basis explaining why the Congressmen singled out this particular set of water users for special treatment. After all, the Settlement Contractors are among those lucky few water users who received 100% of their contract deliveries over the last several drought years, while most others in the state were tightening their belts and making do with less water. The Settlement Contractors also receive enormous quantities of water relative to everyone else – the Metropolitan Water District of Southern California, serving most of urban southern California, has a contract for less water than the Settlement Contractors – and they get it for pennies on the dollar. As my colleague explained here, one of the largest Settlement Contractors complained about paying $9.03 for an acre-feet of CVP water during the height of the drought, when other water users were spending hundreds of dollars an acre-foot. And it doesn’t appear that the Settlement Contractors need nearly as much water as they once used, due to improved efficiency. One of their representatives explained earlier this year that the Settlement Contractors can grow as much rice as they’ve always grown with more than 2 acre-feet per acre less water due to efficiency practices and improvements.
Despite this apparent wealth of cheap, abundant water, the letter (posted in its entirety here) complains that the United States has recently changed its position on whether a portion of the 2.2 million acre feet of water known as “project water” can be shorted in times of drought, or to protect water quality or endangered species. “Project water” is less than 20% of the total contract amount of the Settlement Contractors, most of which is classified as more secure “base supply.” The so-called “change” in position to which these Congressmen object is a single line in a brief recently filed by the Interior Department explaining that: “Should it ever prove necessary for project water under the SRS contracts to be reduced to meet legal obligations under the ESA to benefit the delta smelt or other listed species, Article 3(i) gives Reclamation the same ability to do so as it has under [other CVP] contracts.” But this is neither a fundamental change in the position of the United States, nor is it the wrong policy or legal approach.
The Bureau of Reclamation has consistently taken the position that the “project water” in the Settlement Contracts can be reduced to meet legal obligations, such as ensuring adequate water quality or protecting endangered salmon that spawn, rear and migrate in the upper Sacramento River near these contractors’ diversion facilities. In fact, the contracts themselves, renewed in 2005, expressly note that the contractors may not receive the full contract amount of water due to the "errors in operation, drought, or unavoidable causes" or "actions taken ... to meet legal obligations." Echoing this language, the Bush Administration explained in a court filing in 2008 that “these contracts ... insulate Reclamation from liability for the non-delivery of project water when necessary to 'meet legal obligations,' including the terms and conditions of a biological opinion prepared under the ESA." A federal district court judge in Fresno agreed, explicitly finding that the Settlement Contracts “specifically and unmistakably reserve[] to the United States the right to reduce Project Water diversions by SRS Contractors.”
The current position of the U.S. government is clearly not a “fundamental change” from the position it has long held through a series of Republican and Democratic administrations. So what is really going on here? Plain and simple: the Sacramento River Settlement Contractors do not want to do their part to help restore the imperiled Delta ecosystem, even though their upstream diversions significantly affect the amount, timing, and quality of flows into that ecosystem. In fact, they are fighting tooth and nail against NRDC’s efforts to get the Bureau merely to consult on the impact of these contracts on threatened and endangered species.
If these Congressmen get their way and succeed in insulating these contracts from complying with the Clean Water Act, the ESA, and other state and federal laws, they’ll end up imposing a higher burden for compliance on the backs of many other contractors and water users in the state, including the Delta exporters that they’re supposed to represent. Be careful what you wish for, Congressmen – you might get it.