The Fat Lady Has Sung
 John A Nejedly

             Yogi Berra’s classic criteria for finality has now been presented by the Congress in the form of federal legislation to establish a new administration to manage water resources in California and provide three billion dollars in public funds to accomplish its purpose, control of water export projects and secure additional water to increase export deliveries from Northern California.

             The proposed governance body of this administration to be a composition of State and Federal export agencies and satellite departments now managing water export operations.

             This body is to augment the State Water Resource Control Board, the agency created by the State legislature to exclusively manage the resource and which presently has the authority to control both State and Federal export projects.

             The Board, unfortunately, has not discharged its responsibilities.  As the trustee of the Public Trust, has not allocated water to achieve its most beneficial use, domestic consumption, and has not exercised its authority to modify or terminate previous permit entitlements to secure the most beneficial use in the Public Trust.

             It has withdrawn what little action it has taken upon order of the incumbent governor and has ignored judicial direction to conform its action to its responsibilities to serve that broad public interest.

             The Board and the Regional Water Quality Boards have not acted to effectively control the application of toxic agricultural products or the provision of project water to areas of natural concentrations of salt and other toxics leading to the consequent destruction of the Kesterson Game Refuge and contamination of the San Joaquin River and the loss of thousands of acres of once productive farmland.

             Applications for water allocation for its highest and most beneficial use, domestic, have wandered through a labyrinth of neglect and time.  In one case, the wasting of thirty million dollars and thirty years to process a water application without assistance or direction by the Board and the application was finally abandoned.

             The Board has continued to permit the use of highest quality water in the State to agricultural use while domestic use is directed to treated sewage.

             In the ‘76-’77 drought, reservoirs were completely exhausted to satisfy agricultural demands while no domestic flows were provided for.

             The Board has failed to provide regulation of export practices leading to the State pumps destroying thousands of young salmon, an endangered specie.  Operation of the pumps was not ordered terminated by the SWRCB while the smolt were in the vicinity of pumps suction.  The State water project was provided water south of the Delta to eliminate the need to pump and the State agreed to stop pumping while the smolt were at risk, but instead, continued to pump, accepted the alternate water, and consequently destroyed thousands of smolt, again, an endangered specie, without any action by the Board.

             The SWRCB has failed to provide regulation of levee construction and repair to the point that these protective structures are subject to failure with potential property damage, water quality in the Delta impaired and potential loss of lives.

             An even more important failure of the Board to maintain management in the public interest is the core reality that there has been no ethos in resource management and, presently little hope for its introduction in the future in which the export agencies are given the legislative power to manage the resource in California as now proposed.  When one reviews this short record of failures of the Board to meet its obligations one can readily understand what the State can expect with the Board remaining, in CALFED participation as a principal party in future resource management.

             Absent regulation by the SWRCB, the two export agencies have established management for and by themselves.

             Self-regulation was established by protocols providing for obtaining the largest amount of water for export at the least possible expense.

             Their self-serving “regulations” were created by the two export agencies and the ancillary satellite bureaus the management of which is provided by the same appointment authorities, the president and the governor.

             These self-imposed controls were identified as “Agreements” between the two export agencies drafted exclusively by them and executed exclusively by them.  A humorous note of which is that some “Agreements” are signed as “Principal Parties,” the exporting agencies, but containing another page of “interested parties” having no part of decision making authority but giving the impression they were.

             The prescription for anticipation at what will follow from the CALFED program and its administration by the two export agencies can best be understood by reviewing how these two agencies have performed in the past.

             The inventory has previously been provided, but the dimensions of the devastation incident to past activities of the State and Federal water export agencies must be established as well.

   1.      The complete destruction of the San Joaquin River 70% of the flow of which is untreated agricultural wastes, and is now unfit for human contact recreation, irrigation and, by regulation of public health authority, limited in human consumption

 2.      The emasculation of the Trinity River, the rehabilitation of which is now underway at public expense.

 3.      The destruction of thousands of acres of once productive farmland by permitting and, in fact encouraging, the application of irrigation water which leached out the salt contents of these arid lands, and by application of water to known concentrations of selenium, the discharge of which subsequently destroyed the Kesterson Game Refuge and the San Joaquin River.

 4.      The deliberate killing of thousands of salmon smolt by continuing to pump while these small smolt were in the pump draft.

 5.      The delivery of pristine Sierra water to agriculture while domestic use is required to develop treated sewage

 6.      The special preference given to water export contractors during periods of drought by totally discharging reservoir supplies to export contractors while denying access of people to supplies for domestic use people who have priority by entitlement to the most beneficial use of the resource.

             Universally, a public agency considering a public project would require the public benefiting from the project to pay project costs.  However, the CALFED agenda provides the unique proposition that the taxpayers of the United States are proposed to be taxed for the entire expense intended solely to benefit the State and Federal water contractors.

             Those to be particularly benefited, by provision of additional means of securing additional water pursuant to the CALFED program, also insist that millions of general funds provide for the removal of toxic agricultural wastes from the areas that produced them and deliver this toxic waste stream by a San Luis Drain to the Delta and Antioch.

             An example of past project promises and reality is the inclusion in the Federal Central Valley Project of a drain to remove the waste stream of agriculture and convey it outside its areas of origin and deposit it far distant from its sources.  In this case, the San Luis Drain collecting San Joaquin Valley toxic accumulations at Antioch to mix with Delta waters, the source of domestic water supply for Eastern Contra Costa County.

             While this project is an unfortunate example of agriculture’s design to simply deposit its wastes in some other area, it is also an example of project priorities for 56 years, precisely what to expect from the CALFED environmental enhancement illusions of performance.

             Continued priority to agriculture over domestic requirements.

             Secure previous Northern California appropriation rights for additional export utilizing Northern California underground supplies to increase export.

             Develop all remaining Northern California streams, particularly the Eel and the Klamath for export.

             Use of Federal and State financial sources.  A gift of public funds to export contractors and private owners of now worthless land and water assigned them intended for use on those lands for which the water use permit no longer can be used instead of simply rescinding the water assignment as the Board has the authority to do.  CALFED proposed to purchase the water right at public expense, obviously a gift of public funds.

             Delta levees are maintained by private owners to protect island uses.  Absent property construction and maintenance, these levees are subject to failure and subsequent potential disaster.

             Owners of property presenting a risk are required to remove the risk or abate it by repairs.

             If a private owner of a dam which is found o be unsafe and a consequent public risk, the owner of the facility would be required to abate the danger at the owner’s expense.

             An electrical distributor whose power towers and conducting appurtenances were found to be a public risk, the owner of the facilities would be required to immediately eliminate the peril.

             Here, however, CALFED proposes to grant public funds to alleviate Delta island levees presently at risk.  Again, obviously a gift of public funds has been created by public funds replacing the responsibility of those who created the risk.

             Should it be shown that public activities are part of the cause of levee deterioration, including boat wash and trespass, then public construction to that extent can be recognized.  Such financial assistance is already provided by payment for environmental improvement in the course of levee repair.

             The legislation guarantees nothing in the way of future funding for levee management.  Bereft of future Federal Budget provision, the costly expenses will be inherited by local and State funds already in short supply, or the dangers incident to levee condition continue, absent future Federal contributions.

             Legislatively and constitutionally the State completely retains control of resources required for human needs.

             Any allocation of those resources is qualified by the retention of authority to terminate or modify allocations previously granted.

             In the case of water, allocations of water to provide for irrigation were conditioned upon that use being of public benefit and when that beneficial use was terminated, the State had the authority to terminate the permit and reassign that water to provide for its most beneficial use.

             Here, instead, the management of water resources is proposed to treat a water allocation as a fee title right allowing the permittee to sell that right for any purpose to the highest bidder regardless of its level of beneficial use, and the granting of a permanent title to appropriated water is obviously a gift of public funds.

             Private property when sought for public purpose requires a public agency to pay what the property to be acquired is worth.

             Those appropriate procedures will no longer be a part of water management.

             The CALFED Report repeatedly provides that acquisitions are to be made at the price demanded by a willing seller.

             A public agency acquiring private property is obligated to pay what the property is worth plus incidental expenses of the owner.  Here, the CALFED intentions are to pay the owner an amount at which the owner has become a “willing seller,” clearly beyond the public agencies’ responsibility and a gift of public funds.

             The Federal legislation provides that agriculture be guaranteed 70% of available water supplies.

             This industry presently receives 85% of available resources while in 1998 it contributed only 1.9% of the Gross State Product.

             That guarantee will obviously exclude the requirements of other users particularly for domestic consumers.

             The proposals include the intention to treat rights as fee title ownership to be compensated for its acquisition by a public agency.  That title already exists in the State.  In granting a water allocation there is reserved to the State the right

  to rescind or alter the permit should circumstances change and a more beneficial use be presented.  An obvious gift of public funds.

             This is only a partial list of events that will occur incident to administration of the CALFED program in its present and anticipated configuration

             The future of water management in California becomes even more ominous when one finds, repeatedly, in the CALFED report the proposition that the program will simultaneously produce more water for export while improving the environment.  This is an absolute oxymoron.

             However, what is not disclosed is the fact that additional water ostensibly secured to serve environmental purposes cannot, in fact, be guaranteed to serve that purpose permanently and exclusively.  Once additional water is available the CALFED Governance Board can assign it to any use it then chooses

             The original Central Valley Project included specific provisions for particular environmental protection.  When circumstances came to the point that export requirements and environmental uses could not both be secured, the water quality obligations have not been respected and the tragedy of the San Joaquin has followed.

             The State Water Resources Control Board has had the authority and responsibility to manage the water resources of our state, including both the State and Federal water export projects.

             The record of that administration has documented the failure of the political system to provide management of a critical resource and through the Public Trust secure its most beneficial uses.

             Here, however, management is provided by appointed officials whose first allegiance is to an appointing authority which may change every two or four years.  For example, the SWRCB withdrawals of critical decisions upon order of the Governor.

             Any resource or provision of public service absolutely requires long-term planning and adherence to the principles upon which that planning is founded.

             With transient administration of water, that responsibility cannot be provided.

             CALFED will continue administration by appointed officials having no tenure, experience or relationship with the people they should represent.

             The dismal abyss into which this critical resource has fallen will only deepen under the broadening pressure of political administration now proposed to include the Federal water export agency.

             Every purported environmental protection element of the CALFED program will suffer the same consequences, for nothing has changed, export is the ultimate goal.  For the membership of proposed Governance Board established by CALFED is the same group of exporters who presided over the disappearance of the San Joaquin, and the destruction of endangered species in the State export pumps and the environmental degradation of the sources of water.

             To put it in the words of a more competent authority, William D. Sweeney, Area Manager of the Fish and Wildlife Service, Department of the Interior, who determined that, “There is no benefit to fish and wildlife from removing additional water from the natural system!”

             And his opinion goes on to state in reference to the increased export program of CALFED, which includes a Delta transfer facility to eliminate delivery of water to the Delta which now prevents the intrusion of salt water from the SF Bay and make the Delta an extension of the Bay itself.  “That’s the day you can say goodbye to the upper Sacramento and Eel River (and perhaps other North Coast streams) as we know them today.  The upper Sacramento will eventually be nothing more than a trapezoidal shaped rock cobble lined channel devoid of riparian habitat from Keswick (Shasta) dam to the Delta.”

             The answer to assurances of environmental protection are the same promises built into the San Joaquin River project and better understood by the words of Assemblyman Richard Robinson in the Orange County Register September 19, 1977, “I don’t doubt that in ten to fifteen years those of us in Southern California will double cross some of those restrictions on flushing the Bay if we decide we need more water.”

             To declare that environmental enhancements will be included the reality has been that once the increased export facilities are in place the funds to provide for the environment disappear in future budgets.

             When comparing the current problems of electrical energy arising from lack of planning and political administration, consider the potential for our more critical resource water.  Water that cannot be manufactured and is limited to the whims of nature, a resource now to be managed by one consumer group to the exclusion of others, a government created monopoly which proposes to be guaranteed 70% of what nature provides and looks to the general public funds to pay for the cost of its administration and facilities to make the monopoly operable.

             The proposed CALFED Governance Board is entirely composed of appointed officials.  Management policy, funding and tenure is subject to change every two or four years by the Governor or President whose tenures are dependent upon a political system determined by financial resources and support by, in this case, those to be governed.

             It should be clearly evident we are in a serious critical management structure in this resource.  Obviously, now it is also clear that proposed management is the same leadership that has allowed the crisis to develop.

             Before critical becomes chaos, a completely new administrative structure must be put in place and the needs of all people responded to in the governmental obligations to manage the public trust to secure the most beneficial uses of water

             As long as the Holy Grail of CALFED is the bottom line of agriculture and the CALFED Report the industry Bible, that is an objective difficult to achieve.

             The CALFED report is not specific as to the environmental improvement projects or the project from which additional water for export is to be secured.

             There is no cost estimate, time schedule, priority or any schematic presentation of how these factors are to be integrated.

             Absent a realistic cost estimate, no one can determine the disposition of the three billion dollar proposed funding, where additional funds will be obtained and how reliable those projections are. 

            When proposed facilities to export more water are in place, will funding of environmental improvements continue or will those latter facilities be eliminated as was the San Luis Drain?

             These specifics must be made public before any appropriation is made.  The report of record of performance of export property promises leaves little confidence in the State and Federal export operators to manage CALFED proposals

             The CALFED report and discussion in its preparation continue to make the tragic assumption that water is water, leaving unanswered the question of whether the water assigned is of a quality to meet the requirements of the interest to be served.

 
Smolt: a young salmon or sea trout about two years old that is at the stage of development when it assumes the silvery color of the adult and is ready to migrate to the sea