John A Nejedly
Senator Nejedly, John A. (OH 89-31) Retired
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John A Nejedly
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Senator John
A. Nejedly, Ret.
August 20, 2002
Gary H. Wolff, P.E., PhD
Dear Dr. Wolff: I sincerely appreciate your understanding of the issues and your willingness to discuss the subjects involved at such length. To better lay hold of the gist of the subjects, may I first point out the forces and counter-forces involved in water management and, more particularly, the absence of administration by the present political structure, even more important, the incompetence of that present political structure to manage the resource. In the void of regulation in the public interest, agriculture is in absolute control of the most critical resource, water, the confirmation of which is agribusiness creating for itself an 85% monopoly of control of managed water in California described on www.californiawatercrisis.org. The most compelling evidence of that reality lies in the moribund condition of our river systems, particularly the San Joaquin, 70% of which has been the untreated agricultural wastes, best described in the Assembly Office of Research Report of 1987, to which I respectfully refer you. Pristine Sierra sources directly sequestered by agriculture, which does not require that quality (while domestic use does), and the domestic requirements directed to treated sewage. The costs and risks of which are borne by domestic consumers. A further discussion of this issue is contained in the material you already possess and to be found on www.californiawatercrisis.org. This note is presented only as an introduction to the points you raise in your letter and to the central issue, private political and economic power versus principle and the public interest. I enclose an editorial response that suggests more attention be given to the issues involved. As to your letter, certainly the structure to deliver sewage to agriculture does not exist in most of California, and what little reuse system exists has been put in place by domestic consumers who have been driven to that extremity by prior distribution of quality sources to agriculture, through systems built to secure that water, financed by public funds.
Dr. Gary H. Wolff Page 2 All institutions, except in some cases, the Judiciary, which were established to properly manage the resource have abandoned their responsibilities and allowed those present conditions to develop. County of Origin legislation, The Delta Protection Act, management of the agricultural waste stream, and priority in distribution to domestic use have been ignored. The state and federal export projects themselves control assignment of waters. The State Water Resources Control Board has entirely abandoned any participation in its public interest responsibility. Governors have twice vetoed and ordered rescinded the two principal efforts of the Board to respond to the Racanelli Decision alone, and even if the Board should rise to its responsibilities, its appointed officers have but brief tenure and subsequent boards and the Governor can abandon long-term planning attempts, a goal absolutely essential to any resource management. The issue raised on the first page, paragraph 3, of your letter must be must be responded to. Farming is not a homogeneous operation. Farming in Kern and Fresno Counties, for example, do not experience the condition that “new water supplied to farmers is often not much better in quality than treated waste water.” As has been repeatedly pointed out, further upstream areas have, year round, the highest quality water available. The further downstream areas suffer the effects of deprivation of natural run-off and uncontrolled contamination by those upstream regions. The farmers you describe are the farmers of the lower reaches of the river who cannot even utilize the lesser flow now contaminated. Domestic shortfall is created by priority in distributing the resource to agriculture. To properly correct that circumstance, the allocation to agriculture must be reduced; and, if agriculture requires more water, then agriculture must be required to establish and operate water reclamation sources. To do otherwise requires domestic consumers to pay for and accept the costs and risks of sewage reclamation, having been denied access to higher quality water. Why give up? What were the odds on S.B. 200 or S.B. 346 and Proposition 9? Constitutionally, at least, the people have the mechanism to require the political system to respond to their interests through the initiative process, not considered in your paper. The current circumstances of Orange and San Diego Counties now recognizes that “Southern California” does not have common interests with agriculture and Metropolitan should never have provided the votes for the SWP without at least securing priority in assignment for domestic use, which they erroneously believed would automatically be provided. Determination to establish management of water and all resources and propagation of the realities of present regulation, contemptuous as it is of public interest, can provide knowledge of what is required to effect change.
Dr. Gary H. Wolff Page 3 Accepting present circumstances and the course of least resistance cannot prevent the ultimate chaos which can easily be made clear, particularly with the current circumstances of electric energy so close at hand. Presently, with CALfed, the composition of appointed officials of the State and Federal agencies involved in water export has developed an ominous pressure to a contrary future. These representatives of export agencies have now initiated a program in the Congress to secure additional water from Northern California, and the facilities are to be provided through public funding. Management of that program is to be provided by the export projects representatives to secure additional Northern California water through new facilities, and secure a federal authorized monopoly of 70% of available water without any consideration whatsoever of domestic requirements. If, as you say, the approach to accept (like drug addiction), because of its current invincibility to control, doesn’t, to me at least, serve society. What the associates to whom you refer are apparently willing to accept “as a given,” treated sewage for domestic use highest quality water to grow alfalfa, no priority in delivery to domestic use, public fund payments for facilities to enlarge present export projects and water rights being given a fee title right permitting sale by a permitted to any use, however wasteful that use may be--for example, delivery to imitate wave action in an amusement park. Current CALfed proposals go even further. A permittee can demand, without respect to the law governing public acquisition of private rights, condemnation or police power, a price at which the permittee is a “willing seller” not at a price representing fair market value. CALfed’s repeated proposition is that the fee title right to water granted by the state and later to be acquired by a public agency, instead of paying the fair market value of that property, the rule in all other condemnation actions is that the agency will be required to pay the water price the “owner” demands to become a “willing seller.” To repeat, the agricultural permittee who produced the environmental damage (i.e., San Joaquin, Trinity, Klamath) and the unrestrained dumping of agriculture’s wastes can sell back to the domestic users from whom the permittee sequestered the water in the first place at any price that makes the permittee comfortable--a “willing seller,” as CALfed provides. This background, I respectfully suggest, illustrates the need for change, a change that only can be instituted by public awareness, public concern and public action. Rather than accept circumstance, I suggest we work to and encourage their solution in the interests of people, just as the people of Pennsylvania did at Summerset, in spite of incredible difficulties.
Respectfully, Senator John A. Nejedly, Ret. Racanelli DecisionLawsuits by various interests challenged Decision 1485, and the decision was overturned by the trial court in 1984. Unlike its predecessor, D-1379, whose standards had been judicially stayed, D-1485 remained in effect. In 1986, the appellate court in the Racanelli Decision (named after Judge Racanelli who wrote the opinion) broadly interpreted the SWRCB's authority and obligation to establish water quality objectives and its authority to set water rights permit terms and conditions that provide reasonable protection of beneficial uses of Delta water and of San Francisco Bay. The court stated that SWRCB needed to separate its water quality planning and water rights functions. SWRCB needs to maintain a "global perspective" in identifying beneficial uses to be protected (not limited to water rights) and in allocating responsibility for implementing water quality objectives (not just to the SWP and CVP, nor only through the Board's own water rights processes). The court recognized the SWRCB's authority to look to all water rights holders to implement water quality standards and advised the Board to consider the effects of all Delta and upstream water users in setting and implementing water quality standards in the Delta, as well as those of the SWP and the CVP........ More in-depth information at
http://rubicon.water.ca.gov/v1cwp/opts.html
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