Public Works

Conservation groups' letter to the Governor in defense of CEQA

Submitted: Jul 25, 2007

For Immediate Release, July 24, 2007

Contacts:
Brian Nowicki
Center for Biological Diversity
bnowicki@biologicaldiversity.org, 520-449-3898
Others

For Immediate Release, July 24, 2007

Conservation Groups Call on Governor Schwarzenegger to Stand Up for Global Warming Law:
Senate Republicans Hold State Budget Hostage to Favors for Development and Fossil-Fuels Lobby

SACRAMENTO, Calif.— Conservation groups called on Governor Schwarzenegger today to publicly oppose efforts by the Republican minority in the California State Senate to exempt greenhouse gas emissions from environmental review under the California Environmental Quality Act.

“California’s budget bill is currently being held hostage by a small minority of senators trying to force the majority into accepting a measure to exempt new projects from CEQA’s requirement to analyze and reduce greenhouse gas emissions. We ask that you speak out publicly against this and any future attempts to roll back California’s efforts to fight global warming,” read the letter.

The California Environmental Quality Act, a bedrock state environmental law, requires all state and local agencies to assess and reduce significant environmental impacts from new developments and other projects. The California Attorney General and many conservation organizations have sought to hold agencies and project applicants accountable for compliance with respect to greenhouse gas emissions.

On June 21, 2007, the California Building Industry Association, Western States Petroleum Association, and other fossil-fuel interest groups sent a letter to the governor and the state legislature seeking an “administrative or legislative remedy” to exempt the greenhouse gas emissions of developments and other projects from review under the Act.

On Friday, July 20, after the state assembly passed a budget bill and sent it to the Senate, Senate Republican leader Dick Ackerman halted passage of the bill and set out a number of demands, including a provision to exempt developments and other projects from review of greenhouse gases. Such a measure is completely inappropriate for the budget bill and being introduced in an insidious, back-door fashion to forestall public outcry and legislative debate.

After an all-night session through Saturday morning, Senate President Pro-Tem Don Perata adjourned the Senate until Wednesday, with instructions to Senate Republicans to provide a unified list of demands for the passage of the budget. It is uncertain whether the California Environmental Quality Act exemption for greenhouse gases will be part of this list of demands.

California is a national leader in efforts to fight global warming, and the California Environmental Quality Act is prominent among the laws and policies that are addressing greenhouse gas pollution. Other critically important laws and policies include the California Global Warming Solutions Act, which requires California to reduce overall greenhouse gas emissions to 1990 levels by 2020, and Executive Order S-3-05, which sets a goal of reaching emissions 80 percent below 1990 levels by 2050.

The groups’ letter to the governor is attached.

July 24, 2007
Honorable Arnold Schwarzenegger
Governor
State of California
State Capitol Building
Sacramento, CA 95814

Dear Governor Schwarzenegger,

We ask that you issue a public statement of opposition to the current minority attempt in the California state Senate to eliminate the California Environmental Quality Act process to analyze and reduce greenhouse gas emissions.

The State of California has long been a champion of environmental protection and is the undisputed leader in climate change policy nationally. The California Environmental Quality Act (CEQA), our state’s flagship environmental law, is a key component of the suite of laws and policies already on the books to reduce greenhouse gas emissions in our state. CEQA provides an established system with a proven track record of assessing and reducing the significant adverse environmental impacts of new projects. Greenhouse gas emissions are among the most important of such impacts that CEQA addresses.

California’s budget bill is currently being held hostage by a small minority of Senators trying to force the majority into accepting a measure to exempt new projects from CEQA’s requirement to analyze and reduce greenhouse gas emissions. We ask that you speak out publicly against this outrageous demand and any other attempt to roll back California’s efforts to fight global warming.

CEQA requires all state and local agencies to assess and reduce, to the extent feasible, all significant environmental impacts from new project approvals. The CEQAenvironmental review process is fully established throughout the state, with a proventrack record of ameliorating impacts relating to air pollution, water quality andavailability, land use, endangered species, and many other aspects of California’s
environment. This process represents a wonderful opportunity, and also a legal mandate, for cities, counties, and other agencies to consider the greenhouse gas emissions from new projects they approve and then to adopt the many measures readily available to reduce those emissions. While the passage of the California Global Warming Solutions Act certainly heightens the urgency of ensuring CEQA compliance, state and local
agencies’ legal obligations under CEQA with regard to greenhouse gas emissions predate and are separate from and complementary to the new mandates.

The California Attorney General, many of our organizations, and others have sought to hold agencies and project proponents accountable for compliance with this bedrock environmental law with respect to greenhouse gas emissions. Faced with the irrefutable argument that agencies must assess and reduce greenhouse gas emissions to the extent feasible in the CEQA process, a number of special interests are now seeking to eliminate CEQA’s requirements with regard to greenhouse gas emissions.

The June 21, 2007 letter you received from the California Building Industry Association, Western States Petroleum Association, and other industry groups completely misrepresented efforts to enforce CEQA as efforts “to implement AB 32 (The Global Warming Solutions Act) and Gubernatorial Executive Order S-3-05,” and sought an “administrative or legislative remedy” to exempt greenhouse gas emissions from CEQA.

To suggest that efforts to implement and enforce an existing law such as CEQA, constitute premature enforcement of the Global Warming Solutions Act is disingenuous. While the Global Warming Solutions Act is a critical component of the state’s efforts to address greenhouse gas pollution, the statute states repeatedly that it does not excuse compliance with any existing law to reduce greenhouse gas emissions or protect the
environment. See, e.g., Cal. Health and Safety Code §§ 38592(b), 38598.

Scientists tell us that greenhouse gas pollution must be slashed eighty percent or more by mid-century to avoid disastrous climate change. Your Executive Order to reduce California emissions to 80% below 1990 levels by 2050 is consistent with this mandate. But actually reaching the targets identified by scientists, your Executive Order and the California Global Warming Solutions Act will be challenging. To succeed we
must get started immediately and pursue all possible avenues. To this end, California is fortunate to have CEQA, which provides one of the most promising and important means of reducing greenhouse gas emissions from new development and other projects. With California’s population projected to approximately double by mid century, we must improve the way we grow in order to actually achieve the pollution reductions we need to preserve the environment and our quality of life.

During the budget bill crisis of the past few days, special interests opposed to regulation of greenhouse gases attempted to insert a provision into the budget bill to exempt greenhouse gas emissions from new development and other projects from CEQA review. It is possible that this item will be presented once again when the Senate reconvenes this Wednesday.

We ask that you publicly oppose this bald attempt to roll back California’s efforts to fight global warming. As governor, you have demonstrated leadership in fighting global warming, including the issuance of Executive Order S-3-05. We ask that you continue that commitment now by releasing a public statement of opposition to this and any legislative efforts to undermine efforts like Executive Order S-03-05, the California Global Warming Solutions Act, and CEQA, to induce real actions and changes in the fight against global warming. A statement from you would help clarify that attacks against these efforts are working against the interests of the state of California, and against the commitment the state has made to fighting global warming.

Considering the growing impacts and risks of global warming to the environment, the economy, and public health, the benefits existing law can provide to California and the world in reducing greenhouse gas emissions from new projects are tremendous. Full CEQA enforcement with respect to greenhouse gas emissions deserves your full support and enthusiastic endorsement.

We thank you for your leadership in addressing the climate crisis, and look forward to working with you and your staff on this critically important issue.

Sincerely,

Adrienne Bloch
Senior Attorney
Communities for a Better Environment

Michael E. Boyd
President
Californians for Renewable Energy, Inc. (CARE)

Ingrid Brostrom
Center on Race, Poverty & the Environment

Stuart Cohen
Executive Director
Transportation and Land Use Coalition (TALC)

Kim Delfino
California Program Director
Defenders of Wildlife

Drew Feldman
San Bernardino Valley Audubon Society

Susan Frank
President & CEO
Steven and Michele Kirsch Foundation

Garry George
Executive Director
Los Angeles Audubon

David Gordon
Executive Director
Pacific Environment

Ralph Salisbury, Chair
Sierra Club, San Gorgonio Chapter

Bill Hatch
San Joaquin Valley Conservancy

Tam Hunt
Energy Program Director / Attorney
Community Environmental Council

Dan Jacobson
Legislative Director
Environment California

Linda Krop
Chief Counsel
Environmental Defense Center

Paul Mason
Sierra Club California

Lydia Miller, President
San Joaquin Raptor Rescue Center

Brian Nowicki
Center for Biological Diversity

Gary A. Patton
Executive Director
Planning and Conservation League

Michelle Passero
Director of Policy Initiatives
The Pacific Forest Trust

Nancy Rader
Executive Director
California Wind Energy Association

Robert Ryland
Central Valley Safe Environment Network
(CVSEN)

Scott Smithline
Director of Legal and Regulatory Affairs
Californians Against Waste

Ms. Gabriel Solmer, Esq.
Legal Director
San Diego Coastkeeper

V. John White
Clean Power Campaign

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Extinction no solution to water pollution -- Felix Smith

Submitted: Jul 04, 2007

When one looks seriously at the probable extinction of the Delta Smelt, the only thread in the history is the one most denied in the San Joaquin Valley: the systematic, long-range, politically rigged destruction of Public Trust law and natural resources by agribusiness lords and by the aggressions of water agencies led by Wetlands Water District. The entire violation of public trust exploded in Merced County in 1983 at Kesterson National Wildlife Refuge, where it was discovered that agricultural drainage piped from the south San Joaquin Valley with its highly concentrated amounts of Selenium, sickened, deformed and killed living beings -- people, livestock, and aquatic and avian species. Through more than 20 years of government propaganda denying it, coverups, harassment of government staff, ranchers, farmers, environmentalists and journalists that have told and continue to tell the truth, the destruction has continued to unfold.

Badlands is honored to publish these remarks sent to us by former US Fish & Wildlife Service biologist, Felix Smith, before a House Natural Resources Committee hearing on July 2 in Vallejo on the Delta. Smith has never stopped doing his duty as a federal wildlife biologist by speaking the uncomfortable, officially denied truth, since at Kesterson he held the first deformed bird in his hands. The best account in book form of what Smith and others went through to reveal this painful truth, describe its origins and predict its consequences, is available in Tom Harris' Death in the Marsh. Other books include Reisner's Cadillac Desert and The King of California: J.G. Boswell and the Making of a Secret American Empire, by Mark Arax and Rick Wartzman. The best reporter and commentator on the subject is Lloyd Carter.

The worst newspaper coverage of the Kesterson disaster was by the Merced Sun-Star, on top of the story but, judging by its archives from the time, running away from it as fast as it could.

Badlands editorial staff
----------------

House Natural Resources Subcommittee on Water and Power,

Hearing on

“Extinction is Not Sustainable Water Policy: the Bay-Delta Crisis

and

Implications for California Water Management”,

July 2, 2007 at Vallejo, California.

To Chairwoman-Representative Napolitano and other members of this subcommittee.

My name is Felix E. Smith. I appreciate the opportunity to provide these comments. Please include these comments into the record of this hearing.

I held the first deformed migratory bird, an American coot hatchling, found at Kesterson NWR in 1983. At that time I was a U.S. Fish and Wildlife Service biologist recently assigned to look into the emerging issues involving agricultural drainage and wastewater. That experience impacted my life. Some of my concerns regarding Selenium contamination of the lands and waters and associated resources, uses and values are described in my article, “The Kesterson Effect: Reasonable Use of Water and the Public Trust”, published in the San Joaquin Agricultural Law Review, Volume 6, Number 1 - 1996. I submit this article for the hearing record by this reference.

Water is the environment in which fish and other aquatic resources must carry on all their life processes. Such resources, associated uses and values are inextricably tied to the physical, chemical and biological aspects of that aquatic environment. Healthy and diverse aquatic populations are indicative of good water quality conditions (flow, temperature, oxygen and chemical parameters). Good water quality allows for near optimum use of water as an M & I supply, an irrigation supply and as an environment for fish and other aquatic life. For healthy and sustainable fish populations to exist (also wildlife populations), the total aquatic environment (the water, the bed, the riparian vegetation and associated insect life, the food web) all interact and therefore must be suitable for aquatic life at the individual, population and community levels.

The Federal Clean Water Act, as amended, and the Public Trust embrace affirmatively and positively that the people are to be protected against all unwise and unreasonable uses of Federal and State waters. Uses of water can be considered unreasonable because they pollute; because they offend our sense of aesthetics or natural beauty; because they interfere with the right of the public to enjoy a natural resource of state or national significance; because they threaten in a harmful way to upset the ecological balance of nature, or because to allow this unreasonable use confers a valuable privilege which is inconsistent with protecting the public trust.

Agencies like the Federal Environmental Protection Agency (EPA) and California’s EPA were established to protect the public interest and quality of the Nation’s lands and waters. Such agencies are not to squander clean air, allow the pollution of our rivers, streams and groundwater, allow the pollution or other degradation of our land leaving a degraded legacy for our grandchildren or allow the pollution of the body’s of our children, our fish and wildlife resources or our food supply. These same agencies should not look like shills for corporate farms or massive water districts (Boswells Farms, Westland Water District).

Any effort at maintaining sustainable water quality, agriculture and wetland ecosystems (fish and wildlife resources) must involve an understanding of the interaction between the soil and the flow of water over, through, and under the soil well beyond the point of application. Preserving soil fertility is critical to sustaining its productivity. Preserving and maintaining water quality is critical to the productivity of water as an ecosystem and as a commodity for domestic and industrial uses. Unlike soil, which can be built up over time, water can’t be built or enhanced. A river can be lost to a farmer; to a species of fish or to fish resources; lost as a place to recreate or as a water supply. It can be diverted, polluted, misused or over appropriated. Aldo Leopold’s Round River makes the principles of ecology clear and vivid, suggesting that nature is a “Round River”, like a stream flowing into itself, going round and round in an unceasing circuit, going through all the soils, the flora and fauna of the earth while supporting many resources, beneficial uses and values. Destroying one part can destroy it all and all its benefits to society.

A use of the lands and waters of a watershed that so degrades the sustainability of a downstream ecosystem or a component of that ecosystem to make it unsuitable for sustaining viable agriculture, wildlife, fish and other aquatic life, or which makes fish unsuitable for human consumption, or which is a hazard to other fish and wildlife, or which degrades ecological, aesthetic, recreational uses, small craft navigation, and scenic values, is inconsistent with public trust protection, the reasonable use of water is therefore a nuisance. When chemicals enter the bodies of children, or enter the domestic or wildlife food supply to toxic levels without our consent, it is a trespass.

Here is an example brought to you in part by the Federal Bureau of Reclamation and the Central Valley Project.

It was known for a long time that the soils of the Westside of the San Joaquin Valley were derived from parent material formed in an old seabed. The California Department of Water Resources Bulletin No. 89, Lower San Joaquin Valley Water Quality Investigation – 1960, discusses concerns about the chemicals and various salts in the soils and drainage from the area. The soils and parent material extend throughout the Westside, south to the end of the Valley. The sodium ion was a major concern along with a variety of sulfates, boron and numerous trace elements. Even at that time drainage was believed to be a serious and emerging problem. Drainage from the Panoche area was highly concentrated from a quality standpoint and “unusable for beneficial purposes” (see pg. 95 of DWR –Bull. No 89). At that time the San Joaquin River was already seriously polluted from agricultural drainage and wastewater.

The observation “that the drainage was highly concentrated from a quality standpoint and unusable for beneficial purposes”, sparked little attention. With the application of vast quantities of Bureau of Reclamation water to the highly saline / seleniferious soils, the need for drainage works quickly become apparent. Surface waters and the San Joaquin River showed additional evidence of pollution.

By 1982 some people, including a few Grassland duck club owners, believed that something was wrong in the northern Grasslands. They had noticed sick and dead birds in 1981 and 82. In 1983 the first deformed young of migratory birds were found on Kesterson NWR by researchers from the U. S. Fish and Wildlife Service. Kesterson Reservoir (NWR) was the then terminus of the San Luis Drain. People were disturbed by the pictures of dead and grossly deformed waterfowl and shorebirds obtained from Kesterson Evaporation Ponds that were appearing on the nightly television news at dinnertime. Selenium (Se) in the agricultural drainage accumulated via the food chain to high levels in their tissues resulted in dead adults, dead and deformed young. Several species of fish had elevated Se levels in their tissues.

In September 1984, California’s State Board, in its Agricultural Water Management Guidelines for Water Purveyors, stated, “Failure to take appropriate measures to minimize excess application, excess incidental losses, or degradation of water quality constitutes unreasonable use of water” (Emphasis added).

The State Board followed with its Order WQ 85-1(February 1985). The State Board found that agricultural drainage and wastewater reaching Kesterson Reservoir “is creating and threatening to create conditions of pollution and nuisance” (Emphases added). The Order then warned “If the Bureau closes Kesterson Reservoir and continues to supply irrigation water to Westlands Water District without implementing an adequate disposal option, continued irrigation in the affected area of Westlands Water District could constitute an unreasonable use of water” (Emphasis added).

From 1986 to today (2007), Selenium contamination is sufficient to cause deformities and threaten reproduction of key species within the area of the greater Grasslands, in the San Joaquin River to the Bay-Delta estuary. Deformed migratory birds have been found in every year field investigations were conducted for such evidence. Selenium concentration was also high in eggs that were sampled, which in turn could have lead to deformities. Fish resources continue to show high levels of Se because of a Se -contaminated food chain. Selenium has been found in what is usually called edible tissues and in reproductive organs of birds and fish.

Human health advisories have been issued against consuming Se contaminated edible tissues of fish (bluegill and largemouth bass) and of migratory birds (ducks and coots). Women of childbearing age and children are cautioned against eating such tissues. State Board reports indicate that in the Bay-Delta, surf scoter, greater and lesser scaup and particularly white sturgeon appear to be the most at risk to Se toxicity because they feed on filter feeders (i.e. bivalves). Concentrations Se found in 62 white sturgeon muscle samples and 42 liver samples far exceed tissue thresholds for reproductive effects. Recent findings add the Sacramento splittail to the list of species exhibiting elevated Se levels.

The USGS report (Report) ”Forecasting Selenium Discharges to the San Francisco Bay-Delta Estuary; Ecological Effects of a Proposed San Luis Drain Extension” by Drs. Samuel N. Luoma and Theresa S. Presser –2000), indicates that the reservoir of Se on the Westside of San Joaquin Valley is sufficient to provide loading at an annual rate of about 42,500 pounds of Se to the Bay-Delta disposal point for 63 to 304 years at the lower range of its projection. This is with the influx of Se from the Coast Range curtailed.

Selenium bioaccumulation is a major water quality problem. The combination of California’s climate, hydrology, Se loading, Se reactivity, and Se bioavailability poses a significant threat to the aquatic ecosystem of the Lower San Joaquin River and Bay-Delta. Selenium contamination is damaging beneficial uses, degrading food sources of humans and wildlife, aesthetic, recreation and ecological values. Risks to fish and bird reproduction could lead to extinction via contamination of the invertebrate food supply. Filter feeders are great concentrators of Se. Aquatic insects were the primary food item of shore birds. The Report concludes that bivalves appear to be the most sensitive indicator of Se contamination in the Bay-Delta. In the Bay-Delta and the lower San Joaquin River tidal action will increase the resident time of Se, exposing all aquatic organisms and increasing the ability of food organisms to accumulate greater amounts of Se and pass it up the food chain to predators.

Studies indicate that the highest concentrations of Se (12 to 23 ppb) were measured in green sunfish (lepomis cyanellus) from the San Luis Drain where seleniferous drainage is most concentrated. The second highest concentrations of Se (7.6 to 17 ppb) were measured in green sunfish (lepomis cyanellus) and 14 to 18 ppb Se in bluegills (Lepomis macrochirus) taken from North Mud Slough. The high levels (body burden) of Se could be related to the Se sequestered in the sediments and benthic organisms that is mobilized by the detritus–based food chain. (USGS, Biological Resources Division “Effects of an Agricultural Drainwater Bypass on Fishes Inhibiting the Grassland Water District and the Lower San Joaquin River, California” by Saiki, Michael J., Barbara A. Martin, Steven E. Schwarzbach, and Thomas W. May. In North American Journal of Fisheries Management, Vol. 21:624-635, 2001.

One can conclude that water borne Se is the single most predictor of pollution, that it can and continues to have an adverse affect on the aquatic ecosystem, associated fish and wildlife resources, uses and values (Saiki, et al-2001)

The bottom line is that saline / seleniferious soils of the Westside of the San Joaquin Valley contain a reservoir of Se, other trace elements and a variety of salts, that with irrigation, will continue to leach from the soils to the shallow groundwater for years and years to come. This Se leachate / drainage will continue to degrade down slope lands, surface and groundwater, fish and wildlife habitats and other beneficial uses of the receiving waters including the San Joaquin River and Delta.

Today we have the longest Selenium hazardous waste site know to man, extending from at least the Mendota pool and the Grasslands (near Los Banos), downstream via the San Joaquin River to the Delta, Suisun Bay and adjacent marshes. This involves 130 miles of San Joaquin River, miles of waterways in the Delta and 1,000s upon 1,000s of acres of San Joaquin Valley lands and aquatic ecosystems.

With the above information one could allege that the continued irrigation of saline / seleniferious soils of the Westside of the San Joaquin Valley and Se contaminated discharges to the San Joaquin River constitute a waste and unreasonable use of the State’s water, and a nuisance.

This Committee or a court should review the drainage issue and associated impacts to determine if such a use of water is both beneficial and reasonable within the context of continuing shortage of water, the broadened meaning of beneficial use of Section 8 of the Reclamation Act of 1902 and the contemporary equal priority setting of CVPIA, Section 3406 (a) (3) and the Clean Water Act, as amended.

To me this irrigation use of water, associated drainage, Selenium and other impacts is just as inconsistent with reasonable use and public trust protection as is the filling of tidelands (Mark v. Whitney 6 Cal, 3d 251 -1971); as is allowing mining waste and debris that impacted water quality and impede navigation (Woodruff v North Bloomfield Gravel Mining Co. (Fed Rpt. Vol. 12 – 1884) and People v Gold Run Ditch and Mining Co. (4 Pac Rpt at 1152 – 1884); as is a ranch or farm which allows animal wastes and other filth to contaminate the waters of a stream which impacts the water supply and beneficial uses of downstream users (People ex rel Ricks Water Co. v Elk River Mill and Lumber Co. (40 Pac Rpt 486 –1895); as is the deposition of mill wastes and other debris which destroys aquatic life and a fishery ( People v Truckee Lumber Co.(16 Cal 397, 48 Pac 347 - 1897) , and as is the diversion of water which destroys numerous uses and values protected by the public trust reaffirmed or clarified in Audubon (National Audubon Society v Department of Water and Power, City of Los Angeles (33 Cal 3d 419, 658 P 2d 709, 189 Cal Rpt.346; cert denied 464 U.S. 977 – 1983).

The point made by the Elk River Court that if the conformation of the defendant’s land is such that he cannot carry on a dairy without putting such filth directly into the water, then he must find some other use for the land (emphases added). This rational thinking of over 110 years ago is particularly relevant to today’s Se, salt, drainage and wastewater issues associated with the irrigation of selected lands in the San Joaquin Valley. Following the thinking of the Elk River Court, if the Westside farmers cannot carry on their operations without polluting the local ground and surface waters, then they must find some other use for the land. And there is no taking issue for a use that is deemed unreasonable and a nuisance (Audubon).

Some Suggested Actions

Control of agricultural pollution also might be achieved by instituting best management practices, land retirement, and by economic incentives (substantial fines, forfeiture of all or a portion of appropriated water rights or contract allotments). Land retirement is an important option. Removing Federal irrigation water from being use on the Se source lands. Taking the land out of production that is the source of the majority of the salt and selenium problems should have quick and positive results and many public benefits. This can be attained by direct purchase of land or the irrigation rights, leasing land, purchasing the irrigation water allotment to such lands while prohibiting the use of groundwater on those lands.

Retiring lands containing significant levels of selenium or other toxic materials would have just a one time cost. A long term lease might also work, for there would be little if any maintenance costs. Land not needed for conservation purposes such as restoring native grasslands and related fauna of the San Joaquin Valley, could be sold, with title restrictions, for selected compatible uses such as dry land farming, grazing, etc. Within the Westlands Water District problem soils have been estimated at 100,000 to 275,000 acres (USBR, April 1991).

At a cost of $1,000.00 per acre it would cost $100,000,000.00 to retire 100,000 acres or $275,000,000.00 for the 275,000 acres. Lands acquired should be purchased with today's realities in mind. This includes limited or poor ground water, extensive selenium and sodium sulfate problems. Any value added to the price of land should not be based on speculation, the availability of Federally subsidized water, or on the potential construction of a Federal drainage facilities. A reality is that problem soils without water are just about worthless.

For each acre of irrigated land retired, there would be commensurate saving of about 2.0 to 3.5 acre feet of water per acre (depending on crop) or about 200,000 to 350,000 acre feet for each 100,000 acres taken out of irrigation. This water is firm yield water imported from northern California. For each irrigated acre taken out of production there would be a reduction of 20 to 60 pound of pesticides (active ingredients) plus 80 to 250 pounds of carrier materials, (oils, etc.) not applied to the soils. There would be a reduction of the amount of drainage and wastewater generated of about .6 to .8 acre feet per acre of land retired or 60,000 to 80,000 acre-feet for each 100,000 acres retired. There would be a saving in electrical energy by not having to pump water from the Delta. There should be benefits to fish resources and associated fisheries as up to 600,000 to 900,000 acre-feet would not have to be pumped from the Delta.

The water savings could be used to restore or otherwise benefit fish resources and fisheries throughout the waters of the Bay-Delta watershed. Any remaining water could be sold for municipal uses.

Economic incentives may be effective because of the existence and potential threat of law suits using the public trust doctrine, waste and unreasonable use, and the State's enforcement powers. A finding of a waste and unreasonable use of water by a court or the State Board or a finding based on the public trust could bind all entities discharging selenium, boron and sodium sulfate laden drainage and wastewater in to state waters.

Based on the State Board's 1984 (Agricultural Water Management Guidelines for Water Purveyors) and 1985 State Board Order WQ 85-1 definition of what constitutes an unreasonable use of water, the effects from irrigating saline, seleniferious soils are such that this use must be considered a waste and unreasonable use of water and the resultant drainage and wastewater a nuisance. This violates Article X, Section 2, of the State Constitution. The premise of the Federal Clean Water Act, as amended, is violated. The impacts violate Section 8 of the 1902 Reclamation Act, which requires compliance with State laws. Section 8 also says; Provided, That the right to the use of water acquired under the provisions of this Act shall be appurtenant to the land irrigated, and beneficial use shall be the basis, the measure and the limit of the right.

Thank you.

Felix E. Smith

4720 Talus Way

Carmichael, CA 95608

MillerHearofJuly22007

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People with passion and people who babble about it

Submitted: Jul 03, 2007
Mr. Carter will give us the BIG picture on the Merced River - where it comes from and where it goes - as well as the importance of the river to our communities. Lloyd Carter is very knowledgeable about water issues and will also be speaking at the later in the day...Lloyd Carter continues his exploration of water and river issues in the San Joaquin Valley context. 1.5 hour talk at Heartland Festival/River Fair, Riverdance Farm, 2007.

At the public meeting of the East Merced Resources Conservation District on June 20, held at the Golden Bi-Product Tire Recycling Co. offices, Glenn Anderson, a district director, made an interesting comment about a speaker at the recent Heartland Festival/River Fair, held at the farm of another director, Merced County Planning Commissioner Cindy Lashbrook. The EMRCD was the main sponsor of the River Fair.

Anderson described Lloyd Carter, the best natural resources journalist the San Joaquin Valley has ever had, as "not positive or forward-looking." Anderson, not really attending the speech but overhearing it while waiting for a ride to another part of the farm, said Carter sounded like he was on a "rant."

Lashbrook noted that Carter's talk was the best attended of the day, and that a little controversy is OK. The term she used was a "pepper of controversy." Perhaps a small slice of jalapeno in a salad of old green jeans in what she meant. One is never sure.

These are the sort of people who use the word "passion" like the T shirt they bought at their last workshop on "organics and global warming."

Lloyd Carter's passion for the truth about agribusiness, subsidized water, the death of the San Joaquin River, the wildlife tragedy of the Kesterson Wildlife Refuge and in Boswell's Tulare Lake, selenium and other heavy metals, crooked Valley politicians, state and federal water policy and US Fish and Wildlife Service whistleblowers was stronger than his desire for a steady job in the newspaper business. And so he does something else now for a living instead of the journalism at which he excelled magnificently, and we only get to read him rarely in opinion pieces and letters to the editor, mostly in the Fresno Bee.

Researching an article on another topic that Carter knows a lot about, we found this following piece written by him in 1999 for a national audience. Readers will learn and enjoy this fine writer on the beat he has paid dearly to cover because, unlike the T-shirt passion set, Lloyd Carter speaks the truth to the most powerful people in our Valley -- with real passion.

Badlands editorial staff
----------------

The destruction of the American West -- starring big agribusiness and the government that supports it
By L. G. Carter
Penthouse Magazine, January 1999
Reprinted without permission
http://www.chebucto.ns.ca/~rakerman/articles/ph-Destruct_USA_West.html

Way out West the big farmers fly Lear jets, have private airstrips on gargantuan factory farms, control politicians in both major parties, and harvest barrelfuls of taxpayer subsidy money. They also dry up rivers, pollute aquifers, and conscript an army of Third World families to bring in the crops at below-povertyline wages. Grotesque deformities in ducks and geese, poisoned national wildlife refuges, massive fish kills, and pesticide-sprayed fields littered with thousands of dead birds are common, and unpunished, depredations in California's agricultural heartland, despite numerous state and federal wildlife-protection laws.

Meanwhile, the small farmers, whom Thomas Jefferson called the backbone of democracy, continue to disappear from the American landscape at a rate of more than 100,000 a year as a result of governmental and banking policies and the greed of food processors and exporters.

By 1989 only 1.9 percent of Americans lived on farms (compared to 90 percent in 1900), and the 1989 figure is misleading at that because the U.S. Department of Agriculture lists as a "farm" anyplace selling as little as $1,000 worth of agricultural products.

The capital of America's Agropolis is California's San Joaquin Valley, a cornucopia of more than 200 crops that generates $14 billion a year in gross farm income. And the uncrowned king of Agropolis is J. G. Boswell II, a reclusive, unassuming man who calls himself a simple cowboy. In fact he grows more cotton than any other individual in the world. No one knows how rich he is, but his power is vividly illustrated by some of his "accomplishments" during the past half century:

Along with a handful of other big growers, he got the U.S. Army Corps of Engineers (funded, of course, by the American taxpayer) to build four "flood control" dams on rivers flowing out of the Sierra Nevada so Boswell et al. could safely farm the bottom of what was once the biggest body of water west of the Mississippi River, the legendary Tulare Lake. Boswell now controls rights to public water that could well be worth nearly $1 billion. His property in California alone is estimated at 250,000 acres.
When big-rainfall winters reflood the old Tulare Lake Basin, Boswell collects millions of dollars in federal subsidies for not growing crops on the bottom of a natural lake bed.
Boswell persuaded the U.S. Supreme Court to let the richest grower with the most land in a California water district--namely, himself--control district water policy, creating what Justice William 0. Douglas called a "corporate kingdom undreamed of by those who wrote our Constitution."
Boswell got his lawyers to set up a trust for his employees in 1989 to evade federal acreage limitations for cheap federal irrigation supplies in the Westlands Water District, reaping an extra $2 million a year in water subsidies, according to a General Accounting Office study.
In 1982 Boswell was instrumental in blocking a "peripheral canal" to shunt fresh northern California water around the San Francisco Bay/Sacramento-San Joaquin Delta region in order to retain possible future access to north-coast California rivers.
As the U.S. Justice Department looks the other way, his 3,000-acre Tulare Basin evaporation ponds for toxic farm drainage water are triggering deformities in migratory ducks and shore birds supposedly protected by federal law.
Boswell has so far not taken any responsibility for a massive fish and wildlife kill on a 25 mile stretch of canal in h is cotton kingdom that in the late summer of 1997 destroyed 100 million fish and thousands of birds.
This sad spectacle is what is known as agribusiness.

Boswell has plenty of company in irrigation country out West, where growers have industrialized the fields and gained control of entire rivers. These corporate farmers usually don't live down on the farm. In California they often live in mansions in the city. One zip code in an exclusive neighborhood in Fresno--the nation's farm capital--receives more farm-subsidy checks than anywhere else. Fresno was the top farm-subsidy city in America between 1985 and 1995, with area residents receiving 22,419 checks totaling $103.4 million in taxpayer farm subsidies.

According to the U.S. Department of Agriculture, just six percent of our farms--the so-called megafarms--produce 59 percent of the crops in America. Eighty percent of the beef slaughter in America is controlled by just four meatpacking conglomerates, which more than doubled their market share in the past 18 years.

Boswell's domain is the Tulare Lake Basin, comprising parts of Kern, Kings, and Tulare counties in central California. His water rights are a real gusher, all granted from the public: They are equivalent to the needs of a city of three million people and are worth nearly $1 billion, more than twice the value of the land, according to a 1989 article in Forbes magazine, thus placing Boswell in the billionaire club. He also has extensive cotton lands in Arizona, pioneered the cotton industry in Australia, and has long been involved in urban development and real estate in Southern California and Arizona.

Boswell, who helped launch the political careers of three governors--Edmund G. "Pat" Brown, Ronald Reagan, and Pete Wilson--is legendary for his behind-the-scenes ability to avoid legal problems or get water laws either interpreted liberally or simply rewritten.

In 1969, when heavy rains hit California and the old Tulare Lake bed began to fill up, Boswell, as the largest landowner in the Tulare Lake Basin Water Storage District, shunted floodwater away from a planned district overflow area because he wanted to plant that area to cotton. Instead the water flowed into the lake, flooding his land and that of other nearby landowners, including the Salyer brothers, the second-largest growers in the lake basin. The Salyer Corporation sued the Tulare Lake Basin Water Storage District over an existing California water-code section that allowed one vote for every acre--in other words, giving the largest landowner the most votes and control of district policy and elections. Boswell simply used his acreage-based votes to direct the water-district board to flood out his neighbors' fields and keep the planned floodwater storage basin dry.

The Salyer suit finally worked its way up to the U.S. Supreme Court, and in 1973 a young Nixon High Court appointee named William Rehnquist, fresh from a law firm in Phoenix, wrote the majority decision, which in effect ruled for the Boswell corporation, arguing that even though water districts were political subdivisions of the state of California, the one-man, one-vote rule should not apply because the largest landholders had the most at stake during flood situations. Constitutional-law textbooks now refer to this decision as an "anomaly" in the American franchise system based upon the hallowed democratic tradition that corporations do not get to vote--and one person, no matter how rich, gets only one vote.

Justice Douglas castigated the Rehnquist ruling in a strongly worded dissent: "It is indeed grotesque to think of corporations voting within the framework of political representation of people," he wrote. "One corporation can outvote 77 individuals in this district."

Boswell, who has escaped major media attention for decades despite his enormous wealth and influence in agriculture, is famous for reaping government windfalls while decrying government support programs. When the rivers of the Southern Sierra flooded the Tulare Lake Basin, as they had done from time immemorial, Boswell collected more than $10 million in federal flood-relief money because his canals and water-delivery systems and cotton fields--located on the lake bed--had been flooded out or damaged. In addition, according to the Washington Post, Boswell got $3.7 million worth of grain from the controversial payment-in-kind program "for idling land that was under floodwater and could not have been planted."

In 1982 Congress, prodded by Western-state lawmakers, "reformed" the 1902 Reclamation Law, which President Theodore Roosevelt had pushed through Congress to put "family farmers" onto the Western deserts. The 1982 bill (1) eliminated the residency requirement, which had never been enforced (so the big growers can continue living in their mansions in town) and (2) raised the acreage limitation for receiving cheap federally subsidized water from 160 acres (which was routinely circumvented) to 960 acres. Even 960 acres wasn't enough for Big Ag. The loopholes in the 1982 "reform" law were large enough to drive John Deere tractors through, and Boswell and the other big Western growers promptly found ways to evade the 960-acre limitation, primarily through leasing arrangements and complex trusts.

In 1989 the U.S. General Accounting Office said Boswell had set up a trust for 326 salaried employees to evade the 960-acre cheap-water cap on his 23,238 acres in the Westlands. Those acres continued to be farmed as one unit by Boswell, who has managed to reap $2 million a year in water subsidies alone from the trust arrangement.

Boswell doesn't have to worry about wildlife laws either. Routine botulism outbreaks in the Tulare Basin, which can kill tens of thousands of migratory birds at a time, are usually attributable to agricultural and irrigation activities, yet enforcement actions are rarely undertaken by the California Department of Fish and Game or the U.S. Fish and Wildlife Service.

In September 1997 an estimated 100 million fish and 2,300 federally protected birds died in an unexplained disaster along a 25-mile canal on the Boswell holdings. Local game wardens said they could not remember a bigger wildlife die-off in the valley. Crime investigators from the federal and state wildlife agencies were quoted in local newspapers as saying they would uncover the source of the deaths (one potential cause was pesticides) and prosecute those responsible. Nearly a year later no action had been taken.

Boswell has now retired to Ketchum, Idaho, and his son James runs the cotton empire from his home in suburban Los Angeles, although it is believed the elder Boswell still holds the reins.

While Boswell has escaped media scrutiny, he and his cohorts face an ominous threat, which, fittingly enough, they brought upon themselves. Irrigated agriculture on millions of acres of unsuitable soils in the American West is destroying aquifers, salting up land, and poisoning wildlife that once filled the rivers and wetlands west of the Mississippi.

A trace element called selenium, leached from the soil by flood irrigation and dissolved in drainage water flowing from the big irrigation projects, is moving into downstream food chains and causing deformities in migratory birds at--of all places--national wildlife refuges throughout the West. And selenium isn't the only problem. Depending on the soils being drained, the drainwater can also contain dangerous levels of dissolved boron, molybdenum, mercury, arsenic, lead, vanadium, pesticides, herbicides, fungicides, sulfates, and even uranium.

Drainage water from irrigated agriculture is created because searing summertime temperatures in California and Western desert lands bring salts, trace elements, and heavy metals to the surface on ancient-seabed shale soils. This witch's brew of chemicals slowly rises into the root zone of crops, threatening productivity. Irrigation waters imported from other areas carry more salts. Flood irrigation in areas with subterranean clay layers further exacerbates the problem of shallow salty groundwater. Agricultural scientists have known for decades that the only way to keep crop production up is to lower the water table below the root zone by pumping the toxic wastewaters out of the ground and sending them somewhere else.

"Since the 1930s an army of government scientists has provided a plethora of disturbing hard facts about selenium," says Joe Skorupa, a U.S. Fish and Wildlife Service biologist who investigated the bird deformities at Boswell's pond. "Unlike other major pollution problems, however, such as acid rain, oil spills, or smog, the government has not only failed to move an inch toward protecting the American public and a wide diversity of public-trust resources, but, incomprehensibly, actually continues to completely exempt agricultural pollution from the Clean Water Act. In the San Joaquin Valley alone, every year of inaction adds the equivalent of about 13,000 Exxon Valdez spills of selenium-tainted wastewater to the legacy of runaway pollution that our children and grandchildren one day will despise today's spineless federal government for."

Skorupa, a fierce critic of the Department of the Interior's alleged selenium policy, adds, "The truly tragic public-policy aspect of all this is that most of the selenium pollution is as economically senseless as it is environmentally senseless, and those facts have been documented in excruciating detail by the federal government's own General Accounting Office. What may amount to America's biggest dirty little secret has been impervious to rational policymaking for more than 60 years, and counting."

The West's selenium trouble, like many problems in irrigated agriculture, is magnified in the western San Joaquin Valley, where Boswell and other growers in the Westlands have successfully evaded any serious federal efforts at a cleanup or prosecution under wildlife laws.

For more than a decade, attorneys from the U.S. Justice Department, under pressure from elected officials who are under pressure from their agribusiness patrons, have simply refused to enforce the Migratory Bird Treaty Act, a tough bird-protection law with penalties that include both prison time and stiff fines. The treaty has been invoked only once, in 1985, against the federal government itself, to close down farm-drainwater evaporation ponds at the Kesterson National Wildlife Refuge in central California, scene of the first confirmed bird deformities from selenium, discovered in 1983.

Boswell and the other big growers have also managed to avoid paying for the mess their drainage water created. In 1995 the Interior Department's Inspector General's Office also reported that Westlands Water District growers (Boswell has 23,000 acres in the Westlands) had managed to evade the $110 million tab for the Kesterson cleanup and related drainage studies. The $110 million bill was accumulating interest at the rate of $7 million a year, with the taxpayers picking up the tab.

But the Kesterson cleanup tab pales in comparison to the boondoggle desalinization plant in Yuma, Arizona, where Reclamation Bureau engineers have tried without success for decades to pull the farm-pollution toxins and salts from the Colorado River, which is tainted by agricultural return flow. Another Interior Inspector General's report, issued in 1993, said $660 million had been spent on the Yuma desalting plant with no success, and the bureau planned to spend another $1.5 billion by the year 2010, with no guarantee of any success.

The Environmental Protection Agency has been impotent to stop the farm-drainage pollution of rivers and wetlands because farm runoff was exempted from the Clean Water Act in 1977, including the highly toxic end-of-the-pipe subsurface drainage loaded with selenium as well as surface runoff. Indeed, as the Stockton (California) Record reported on June 19, 1998, the E.P.A.--siding with agribusiness--now wants to set standards for selenium and other trace elements and heavy metals in California that officials of the Fish and Wildlife Service and the National Marine Fisheries Service contend will not protect many species of fish in the San Francisco Bay-Delta region.

Interior Secretary Bruce Babbitt, and his four immediate predecessors--Manuel Lujan, Donald Hodel, William Clark, and James Watt--have tried to cover up the Western drainage problem (Watt), to exercise benign neglect (Clark and Hodel), to claim ignorance (Lujan), or just to leave it for the next guy (Babbitt), because the only economically viable solution seems to be to retire the badlands being irrigated. And that solution is political suicide in farm country.

Only Hodel, who, ironically, is an oilman, tried to do the right thing in 1985 when he ordered Kesterson closed because his attorneys told him that Reclamation Bureau officials might be breaking criminal laws operating the Kesterson ponds. But even Hodel quickly experienced an agribusiness backlash and soon fell silent, allowing Kesterson to stay open another 18 months.

No wildlife refuge receiving toxic farm-drainage water in the West has been closed to the inflow of poisons since the Kesterson debacle 15 years ago, although selenium levels high enough to cause deformities have been confirmed at numerous wildlife refuges in several Western states and at a number of evaporation facilities operated by either local water districts (like Boswell's) or private corporations.

Interior Secretary Lujan, in an August 1991 visit to Yosemite National Park, claimed he was unaware of the bird killings and deformities, which by then had been documented for eight years and were confirmed in several states. Lujan said he did not know why aides would not keep him informed.

Environmentalists say the continued bird deformities and government paralysis or inability to halt the aquatic and avian food-chain poisoning demonstrates the still-potent clout of California agribusiness, which produced some $24.5 billion worth of food and fiber in 1996, but today represents less than three percent of the trillion-dollar annual California economy, which is nowadays primarily fueled by computers and electronics, defense, banking, and tourism.

Marc Reisner explained the Alice in Wonderland quality of California agribusiness this way in a 1993 revised version of his book Cadillac Desert: "Enough water for greater Los Angeles was still being used, in 1986, to raise irrigated pasture for livestock. A roughly equal amount--enough for 20 million people at home, at play, and at work--was used that year to raise alfalfa, also for horses, sheep, and (mainly) cows.... In 1985, however, the pasture crop was worth about $100 million, while Southern California's economy was worth $300 billion, but irrigated pasture used more water than Los Angeles and San Diego combined. When you added cotton (a price-supported crop worth about $900 million that year) to alfalfa and pasture, you had a livestock industry and a cotton industry consuming much more water than everyone in urban California--and producing [only] as much wealth in a year as the urban economy rings up in three or four days."

Not only are huge tonnages of California's river water required to grow cotton and food for dairy and beef cows raised in the central California desert, a 1997 Pacific Gas & Electric Company report on the 450-mile-long Central Valley (Sacramento and San Joaquin valleys combined) estimated that agricultural groundwater overdraft (extracting more than can be replenished annually) totals 15 percent of the entire state's annual net groundwater use. At current agricultural extraction rates, the San Joaquin Valley's groundwater supply will disappear in the next few decades.

To make matters worse, the Central Valley now has 1,600 dairies, the vast majority in the San Joaquin Valley, and the 850,000 cows on those dairies create as much natural waste as a city of 21 million people. There are only three state regulators to oversee disposal of this mountain of manure and river of cow urine, which is either kept in leaky lagoons that pollute the aquifer with nitrates or dumped into the San Joaquin River, which runs down the center of the valley The San Joaquin River is often called the most-abused river in the U.S., and in 1997 was named one of the nation's ten most-endangered rivers by American Rivers, a Washington-based advocacy group.

A May 1998 U.S. Geological Survey Report on San Joaquin Valley groundwater supplies, serving more than 2.5 million valley residents, said San Joaquin groundwater is among the poorest in quality in the U.S. The report said 25 percent of valley wells had nitrate levels--probably from fertilizers--that violated national drinking-water standards, and more than half the wells tested positive for pesticides, many of which don't have drinking-water standards.

While ripping off the liquid gold of California's rivers has been an agribusiness specialty for decades, scientists say current methods of disposing of farm drainage may be the final environmental insult that ruins not only aquifers and rivers, and destroys wildlife, but also ruins the very farms that are creating the toxic effluent.

A February 1998 federal-state study of the drainage problem in the western San Joaquin Valley noted 869,000 acres would have a shallow-groundwater problem by the year 2000, and more than 410,000 acres would have salinity and boron problems "sufficiently high to limit agriculture."

To combat the salty-groundwater problem, California growers in the past four decades have installed 33,000 miles of subsurface drainpipes to collect these shallow saline groundwaters and pump them somewhere else--to the nearest river, a public or private evaporation pond, or a low-lying national wildlife wetlands refuge. This "solution" has been bad for the receiving waters and fish and wildlife in every case.

Although estimates of present and future "problem water" are hard to nail down in an atmosphere of nonregulation, U.S. Geological Survey scientist Theresa Presser, who has been studying the selenium problem in California for nearly two decades, estimates that 150 billion gallons of toxic farm subsurface drainage water is generated annually in the Golden State. While the farm wastewater from the San Joaquin Valley flows north into the San Joaquin River or festers in evaporation ponds, the drainage from the Coachella and Imperial valleys at the southern end of the state enters the polluted Salton Sea. Huge fish and bird die-offs are a regular occurrence there, and biologists say the Salton could become utterly lifeless in the near future as the continued influx of salts and toxins in the drainage overwhelms all aquatic species.

While birds were dying by the thousands at Kesterson, Boswell had the audacity in the summer of 1984 to send California Water Commission members on a tour of his 3,165-acre evaporation pond complex and have his drainage district manager, Steve Hall, claim that selenium had not been found in the Tulare Basin soils or evaporation ponds. This, of course, could not have been true, as the bird deformities at the Boswell ponds (first tested and confirmed in 1987) turned out to be far worse than at Kesterson. Hall could only have meant there hadn't been any selenium tests yet of Boswell's drainage. In the manner of other Boswell employees who have moved on to bigger and better things in Water World, Hall is now executive director of the Association of California Water Agencies, where he continues to espouse western San Joaquin Valley agriculture's views on water issues.

Throughout 1984 the Kesterson problem continued to worsen. By early 1985 neighboring cattle ranchers Jim and Karen Claus had won a State Water Resources Control Board cleanup order for Kesterson. A CBS "60 Minutes" segment aired on March 10, 1985, showing the ugly ducklings at Kesterson and embarrassed Reclamation officials fumbling to explain the debacle.

Interior Secretary Hodel had enough when advisers told him local Bureau of Reclamation officials might be violating the criminal provisions of the Migratory Treaty Act by keeping Kesterson open. On the Ides of March 1985 he announced that he was closing Kesterson. The announcement sent shock waves through irrigated agriculture that are still felt to this day.

By 1986 the Kesterson ponds had been dried out and Interior scientists looking around the West were discovering selenium contamination in Boswell's local water-district drainwater evaporation ponds in the Tulare Basin, at the Salton Sea National Wildlife Refuge in Southern California, at the Stillwater National Wildlife Refuge in Nevada (in combination with mercury), and at dozens of other national wildlife refuges around the West. While federal officials began the process of endless studies, no action was taken to halt the selenium poisoning of the wildlife-refuge system, which continues to this day.

A national blue-ribbon 26-member panel of wildlife experts issued a scathing report in August 1991, charging directors of the nation's premier wildlife research center, the U.S. Fish and Wildlife Service's Patuxent Laboratory in Laurel, Maryland, with harassing field-level biologists and attempting to downplay the threat of the growing selenium pollution problem. The report, obviously referring to federal biologist Harry Ohlendorf (who'd discovered the deformities at Kesterson), pesticide researchers Chuck Henny and Larry Blus, and Joe Skorupa (who had investigated the bird deformities at the Boswell ponds), said government scientists "had paid a personal price for upholding good science in the face of heavy political, bureaucratic, and social pressures." Felix Smith, the federal biologist who first blew the whistle at the Kesterson refuge, was named in news reports as being hounded into early retirement for trying to protect migratory birds.

In a 1994 Audubon magazine article reporter Ted Williams discussed harassment of field-level federal biologists and quoted Felix Smith as saying that the day Fish and Wildlife Service officials agreed to take drainage at Kesterson "was the day we made a bargain with the devil."

When Kesterson erupted in the news in the summer of 1984, President Reagan's old California friend Bill Clark had just taken over as secretary of the Interior; he promised that a solution to the drainage disposal problem was near, adopting the time-honored political tactic of ordering a lengthy state-federal study. His ploy worked. A $50-million state-federal study commenced in 1985 with much fanfare, and ended in 1990 with a whimper. It was full of good recommendations, including one for retiring hundreds of thousands of acres of bad land. It was also promptly shelved.

The Reclamation Bureau has finally launched a modest program to retire the first 12,000 acres of high-selenium soils in the Westlands. At that pace it will take 200 years to retire all the bad land just in the 600,000-acre Westlands. No one even talks about the millions of acres of high-selenium farmland all around the West that should be taken out of production.

Congress passed another reclamation reform bill in 1992 to put more federal irrigation water back into California's depleted rivers and the San Francisco Bay-Delta to help revive the moribund salmon runs, but Westland growers, backed by valley politicians, have been working ceaselessly to rescind or weaken that law.

Fish and Wildlife's Skorupa complained in the Audubon article that he took a solid case for criminal acts at the Boswell killing ponds to Justice Department attorneys just before the 1992 election but that the federal prosecutors got cold feet and weak spines.

"We were told we had an excellent case," Skorupa told Audubon's Williams, "that they had every confidence that it was winnable, but that until we went and got someone at least at the secretarial level in Interior to give a clear policy directive, the Justice Department would not pursue it."

Skorupa says that about half of 161 federal irrigation-project drainage sites in the West studied between 1986 and 1993 have selenium levels high enough to trigger embryotoxicity, which can include deformities. What is more depressing is that federal irrigation projects make up only about a quarter of all irrigated agriculture in the Western United States. The other 75 percent of the irrigated land in the West has not even been looked at for selenium poisoning.

Eleven years after the first confirmed selenium-caused bird deformities at the Boswell ponds, the Department of Justice, with Janet Reno presently at the helm, still has taken no action against Boswell, and any possible prosecutions for the bird deaths Skorupa painstakingly documented beginning in 1987 are falling prey to the statute of limitations. An angry Skorupa can only shake his head.

Although the government has had serious warnings about selenium problems in the West for more than 50 years, the Department of the Interior was still claiming in 1997 that selenium had been an "unforeseen consequence of irrigation drainage. That '97 report from the National Irrigation Water Quality Program also claimed that "because complete investigation of every irrigated area in the Western United States is impractical, managers need to be able to predict where selenium contamination is likely."

But it's not impractical at all, insists Theresa Presser, who was one of the first to document the widespread selenium contamination in the western San Joaquin Valley. According to Presser, selenium contamination is also likely not only where soils have selenium ejected from ancient volcanoes during the Cretaceous age, but also where ancient seabed soils have been uplifted by geologic activity over eons, such as California's Coast Range. In other words, human irrigation and export of the resulting drainage water into evaporation ponds or wetlands is doing in a few years what nature took millions of years to do.

It's clear that no one in the Clinton administration is going to make the hard decisions about getting the toxic soils in the West out of production. In late May 1998 the E.P.A. held a conference in Washington, D.C., that was attended almost entirely by big selenium polluters--oil companies, mining companies, major agribusiness, coal-burning utilities. They all argued against any E.P.A. review of the current standards for selenium in rivers, lakes, and marshes, which scientists say is at least twice as high as it should be and which may lead to the extinction of at least 20 species of fish and wildlife.

Boswell and the other agribusiness lords are determined not to become extinct themselves. Last March a consortium of state and federal agencies that dances to the tune of agribusiness announced a new plan to build a peripheral canal around the Delta and import yet more northern California river water to the selenium fields of the western San Joaquin Valley.

In July the Western Water Policy Review Commission, created by Congress in 1992, issued its report, three years behind schedule. The report identified agricultural wastewater as the single largest source of pollution in the West, recommended phasing out federal water subsidies, and specifically suggested that subsurface drainage water, which triggers the bird deformities, be brought under the Clean Water Act and regulated because it is an end-of-the-pipe type of pollution.

The response of the growers was typical. "The sooner this report gets put on a shelf and starts gathering dust the better," said Jason Peltier, manager of the Central Valley Project Water Association.

Dinosaurs swing big tails going down.

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Massacre on the Delta

Submitted: Jun 09, 2007

"The collapse of the Delta Estuary is really a regulatory collapse." Bill Jennings, chairman of the California Sportfishing Protection Alliance.

But the regulatory process doesn't collapse all by itself. Delta fish populations were declining 15 years ago. Collapses began a few years ago. Meanwhile, CALFED met to "fix the Delta." The collapses occurred while regulators dithered, environmental stakeholders groups bought into a collaborative process, water agencies sued, and Bush appointees and federal and state legislators muscled resource agencies and starved them of funds.

In Merced, where local, state and federal government officials have continued to buy off most of the public with "citizen" collaborative processes, lawsuits and grassroots campaigns have been successful in stopping some environmental destruction.

The idea of CALFED was to bring state and federal resource agencies, stakeholders and environmental groups together in a collaborative process of regional planning. CALFED failed completely. Yet, today, the governor has initiated two new collaborative planning processes, the San Joaquin Valley Blueprint and the California Partnership for the San Joaquin Valley in new efforts to stave off environmental lawsuits against ruinous urban growth. The Blueprint and the Partnership will come to be called the children of CALFED.

At the moment, while Congressman Cardoza alarms Lathrop city officials about the terrors of FEMA floodplain maps and poses in farming districts as the savior of the Honey Bee, former Congressman Pombo signs with Stockton to lobby on water issues, and witless Congressman McNerney sojourns in Livermore, Jennings brings us up to date on the slaughter in the Delta...

Much attention has been focused on the expanded salvage numbers of Delta smelt, as identified by DFG, DWR and Bureau representatives in the press. Unfortunately, they have misled the public regarding the actual numbers of smelt killed by the pumps. The real number of smelt killed by the pumps is not 448 (208 by the SWP and 240 by the CVP), but closer to 11,000 smelt killed during May. It is this number that must be compared to the handful of fish found in the Delta by DFG during the May trawls.

I became curious about agency claims after reading a 1994 article in the SacBee by Jim Meyer that quoted DFG biologist Dale Sweetman as saying, “The actual fish kill is at least 12 times the number of fish salvaged” because since “they can’t measure how many fish are killed, the pump’ operators use the number of fish saved by screens as a gauge to estimate the loss.”

I asked biologist Dan Odenweller (retired DFG chief of screening) about the actual killed versus salvaged rates. Dan pointed out that only an estimated 5% of fish are actually diverted around the first set of fish screens to the secondary channel and only about 5% of those are then diverted around the second set of screens to the salvage buckets. In other words, about 99.5% of smelt are neither “salvaged” nor counted. They continue down the DMC toward the Tehachapis. Of course, none of the “salvaged” Delta smelt survive and these numbers don’t include the larval stage of smelt (less than 20 mm) that can’t be detected. Added to the smelt that pass unrecorded through the screens, is the large number killed by predators in Clifton Court Forebay before they get to the pump inlet. The federal facility is somewhat different and doesn’t experience the same degree of predation as the SWP.

Attached is a simple model developed by Odenweller. Based on his best professional judgment, Dan estimates that CVP pumping killed approximately 2,896 smelt during May and the SWP pumping (assuming forebay predation for smelt is the same as salmon) killed 8,533, for an approximate total of 11,429. This is far different that the 448 smelt killed by pumps that we’ve seen widely quoted in the press. The bottom line is that, during May, the project pumps killed somewhere in the vicinity of 300 times the number of smelt DFG found in surveys throughout the Delta.

I’m sure everyone remembers that the CalFed ROD promised state of the art fish screens. That was before the water contractors bluntly stated that they wouldn’t pay for them.

With respect to the current surveys, the 2007 Survey #6 is finished and most of the information has been posted (as of Sunday night). This latest survey found smelt at 6 sites (115 trawls) with a total catch per unit equivalent (CPUE) of 18.28. This compares to last year’s Survey #6 that found smelt at 19 sites (121 trawls) with a total CPUE of 1,273.8. I haven’t seen the total numbers of smelt captured posted but, using the CPUE as an indicator, it’s clear that this year’s Survey #6 shows a massive drop from the corresponding survey last year. Indeed, it’s clear that DFG found far fewer smelt in this year’s Survey #6 than the paltry 25 smelt identified in the immediately preceding Survey #5. The splittail and longfin numbers also reveal a dramatic drop from last year. Striped bass look about the same.

With respect to the alleged reduction (minimized) in pumping at the federal CVP that was almost universally touted in the press, I note that export rate during the first two days in June is exactly the same as pumping throughout May (1,692 Acre Feet, 855 cfs). Farmers get their water despite adverse effects on Delta smelt; municipalities scramble to find supplies from storage. Sound familiar?

Bill Jennings, Chairman
Executive Director
California Sportfishing Protection Alliance
3536 Rainier Avenue
Stockton, CA 95204
p: 209-464-5067
c: 209-938-9053
f: 209-464-1028
e: deltakeep [at] aol.com

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Steinberg's Blueprint for Growth

Submitted: Jun 04, 2007
Better regional planning will help make the state's metro areas more attractive and livable, and that will allow them to grow and attract jobs in a cleaner, healthier setting.-- Sacremento Bee editorial, June 4, 2007

Endorsing a bill authored by state Sen. Darrell Steinberg, D-Sacramento, the Sacramento Bee editorialized today that the Sacramento Area Council of Government's (SACOG) "blueprint" should be made statewide policy for urban areas.

(That's too much Sacramento for one sentence. Might as well throw in the Sacramento Kings, the Sacramento River, Old Sacramento, and West and South Sacramento, too. Nevertheless, the bill proposed is pure Sacramento.)

We were unable to think of one bit of open space SACOG has ever saved from Elk Grove to Auburn and plenty of ground its transportation policies have made more attractive for development. What little open space that has been saved in the SACOG region has been saved by lawsuits mainly under the California Environmental Quality Act (CEQA). One exception might be the Sunset Industrial Zone between Roseville and Lincoln, designed to provide space for industrial development and job creation. Roseville is very proud of its superior jobs/housing ratio. We would guess the current largest employer in the zone is an Indian casino across the road from a regional land fill. The zone is under constant developer pressure from both Roseville and Lincoln, particularly along transportation corridors.

To get local government buy-in, Steinberg is offering cities and counties certain exemptions from CEQA, while promoting his bill as part of an anti-global warming package in the state Senate.

The devil is in the details, particularly on CEQA exemptions, and this bill is a Steinberg work-in-progress special, but right now it looks like another Developer Trojan Horse.

Counterpunch editor and publisher, Alexander Cockburn, has written a series of recent articles challenging the scientific connection between human activity and global warming. Cockburn has taken a lot of "heat" from environmentalists for his position, but his eye for damaging policies world-wide that result from the global warming panic is dead on.

Trust the term-limited Legislature of California, a wholly owned subsidiary of lobbyists for finance, insurance and real estate (FIRE), to use global warming as an excuse for weakening the best state law in the country for protecting land that is not smog producing.

The hypothesis that carbon emissions are causing global warming is a useful one. Another useful one is that smog has stupefied Sacramento.

Badlands editorial board
--------------------

6-5-07
Fuelish sprawl...Editorial
http://www.sacbee.com/110/story/204393.html

Sacramento area's award-winning "Blueprint" plan has hammered home two key points. First, endless sprawl is not inevitable in our region; second, through incentives, local governments can work to contain leapfrog development and promote transit and alternatives to the automobile. The Blueprint doesn't have the sweep of regulatory measures -- such as Oregon's urban growth boundaries -- but it has changed the dynamic of local planning decisions. Every time a major project is proposed, people now ask this question: Does it comply with the Blueprint? That raises another question: Why don't we have Blueprints in every major metropolitan area of California?... state Sen. Darrell Steinberg of Sacramento is working on a measure that could imprint the Blueprint statewide. Senate Bill 375 would require the California Transportation Commission and regional agencies (those with populations larger than 800,000) to conduct the kind of modeling and planning that SACOG has done in this region. If local governments comply with the growth scenarios envisioned by a region, they would be exempted from certain requirements of the California Environmental Quality Act. That's a significant incentive. Steinberg is promoting SB 375 as part of a Senate package to fight global warming. Blueprint planning, the thought goes, would limit the growth of greenhouse emissions from vehicles and trucks. That's a timely and reasonable argument, but the real reason to support this bill is much closer to home. Better regional planning will help make the state's metro areas more attractive and livable, and that will allow them to grow and attract jobs in a cleaner, healthier setting.

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Report of a meeting in Hillmar on transportation politics

Submitted: Jun 03, 2007

Summary of Meeting at Hilmar Grange Hall, 5/29/07, 6:00PM
by Stevinson Citizen's Group

People in attendance: Table in front of everyone - Jesse Brown, MCAG Executive Director; Senator Jeff Dunham; Kome Ajise, Cal Trans rep for Merced County. Others in attendance: Robin Adams, rep for Kathleen Galgiani; Supervisor Deidre Kelsey (arrived at very end); Merced County Planner, Bob King; about five guys from Livingston, including their mayor and city councilmen; Dan Bohan, Developer for Stevinson Ranch; Diana Westmoreland Padrozo, Merced Co. Farm Bureau, ED; Reporter from Modesto Bee; probably about 75 citizens or more. MAC members: Robb Mitchell, Pat Sparks, Karen Wolchek and Connie Lourenco. Didn't see Dave Anderson or any of the others and I continually looked around for them. Even George and Patty were not there. By the way, I sat right by Dan Bohan.

First Speaker was Robin Adams representing Kathleen Galgiani. He said she would do anything that she can to move road projects forward.

Second Speaker was Kome Ajise, Cal Trans. One sure bet of funding is Hwy 99 projects. 1 billion is going to be spent from Bakersfield to Redding. 1/4 billion for Merced County with the projects being the Mission Project to Madera County line widening to six lanes. Other projects next in line are Los Banos bypass and widening of 99 by Livingston.

Jeff Dunham asked Kome what are ways for counties to be self help. His response was 1. Sales Tax measures (19 counties now have it)
2. Traffic impact fees (mentioned El Dorado County has one.
He said Merced County has one too but it is different from
El Dorado County one. He did not elaborate on how it is
different)
3. Toll roads (Area not right for those. Need more pop and
roads that people have no choice but to take)
4. Developer fees (he called it "straight levee on rooftops")
Kome stressed that state is reluctant to take on any more projects than those already in process. Hwy 165 is not considered in process at this time.

Second Speaker was Jesse Brown, MCAG. Said that MCAG is responsible for
creating a regional transportation plan for Merced County. Merced County receives federal dollars every year from our tax dollars, but it is all spent on road maintenance. 1.9 million was available and it was all used for maintenance. 2.6 million came from congestion funds but has to be used for transportation issues like mass transportation.
Jesse Brown stated MCAG's reasons for allocating funds:
1. safety
2. congestion
3. leveraging more money from other sources.
4. efficiency
He spoke about Hwy 165 Bypass:
1. Has to be placed in regional transportation plan, which it is.
2. MCAG only has money for project study report (being done now)
3. Next step is the EIR (8 years)
4. Engineering (1 1/2 years)
5. Right of way (2 1/2 years)
6. Build road (3 years)
He said that MCAG has many priorities before Hwy 165 bypass is in top tier. Top tier projects are proposed to be built within the next 20 years. It was in top tier, but because Measure G failed it no longer is. He said that he can guarantee that the soonest it could be built would be at least 20 years and not before that time. Remember Deidre was always saying 10 to 15 years.
Of course, he stressed that we need to become self help. He thanked Hilmar for overwhelmingly voting to pass Measure G. He said the Measure failed in Atwater and Merced so that is where they will put most of their effort this time around.

Then the floor was open to questions. One of the most interesting was a man from Livingston who is on the city council. He brought a map. He said that he and others are proposing to put the highway interchange in Livingston and route 165 bypass people over there to it. Never gonna happen. He had a very fancy aerial map with the plan on it. He thanked Senator Dunham several times for inviting him to come. So it looks like Livingston is gunning for the interchange. There must be a lot of money to be made by putting fast food restaurants and such by those. Look at what Livingston has done at the interchange at the Winton Rest Stop. They are licking their chops for this one too.

I was the last person to go to the microphone to ask a question. None of the previous questions dealt with developments so I had to think how I could tie it in to the issues discussed. I told Denham and the Cal Trans man about all of the master planned developments proposed that would be serviced by Hwy 165. When I mentioned 3,700 homes in Stevinson the Cal Trans man straightened his back, shook his head and frowned. Denham turned his head and looked at the Cal Trans man when this happened. I said that within a 13 mile stretch 11,000 homes are being proposed (Stevinson, Turlock Golf Course, Turlock's platinum triangle) and that traffic would be serviced by a two lane bypass. I said that it is not going to work. There will be too much traffic for a two lane bypass. Then I said how people have told me that you cannot even speak of four lanes because of costs. So, I just said that the numbers do not add up and the two lane bypass is too costly for the service it will provide.

One man said that it takes too long for EIR's. He said they need to shorten the process. He said that once they are done Mrs. Miller does a lawsuit and it takes another two or three years. He said that she did it on the UC Merced and now she is doing it on the racetrack. Kome said that it cannot be shortened because it is the law. The man said they need to change the laws.

Rob Mitchell got up and gave a very good speech about the idiotic idea of self help. He was pretty mad and said that we have already put in our money and that the self help concept is holding money we have already paid hostage until we put more money into the system. He got a large applause with that comment.

After the meeting I stayed around and talked to people. A woman came up and said that she is sure they are not going to use Griffith. She said they will take property off of the backside of people's land between Griffith and Golf.

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Blaming the victims

Submitted: Apr 09, 2007

"I hope the voters will understand when we put a tax measure on the ballot again we are spending every cent we have right now and it's not even scratching the surface," Spriggs said. -- Merced Sun-Star, 4-9-07

In one of the nation's fastest growing residential construction areas, producing nearly the nation's least affordable housing stock in an area now facing among the nation's highest rates of mortgage foreclosure, this councilman suggests that the condition of the streets and roads of the city and county is the fault of the citizens, specifically because they refused to approve a sales-tax hike to pay for transportation costs, the highest and first portion of which would have gone to the UC Merced Campus Parkway. The blame lies with this city council, which passed project after project and condemned the public schools for at least trying to fight for a larger share of the developer dollar. It was unwilling to charge high enough fees to developers of the physical and financial mess they have made of Merced to pay for a little more slurry on its crumbling city streets. Maintenance and repair of public infrastructure, except when it relates directly to new development, is not on this self-important council's agenda. Instead, it blames the public for its own miserable neglect of public works. This council's leadership is rapidly turning most of a small Valley city into a ghetto surrounded by unfinished subdivisions.

"One Voice" leadership is impressive in its unanimity. The problem seems be the same as it has been since UC Merced arrived: Merced leadership has been unanimously wrong. Maybe this was because, caught in the backwash of other people's feeding frenzies, it forgot that it was elected to represent citizens, not special interests.

Bill Hatch
-----------------------

4-9-07
Merced Sun-Star
Roads to get some attention...Leslie Albrecht
http://www.mercedsunstar.com/local/story/13469608p-14080252c.html

Five miles of South Merced roads will soon get needed maintenance, but the work will barely make a dent in the city's road repair backlog, officials say...a plan to spend $1 million to coat...roads with slurry seal. The city has an $89 million backlog in needed road repairs, said Tucker, but in a good year, Merced receives a total of $4 million for all transportation projects. The South Merced slurry seal project will be funded with money from Measure C, the half-cent sales tax that went into effect on April 1, 2006. As of February 28, the new tax had generated $4,511,190, said city Finance Officer Brad Grant. Most of that money has been used to hire 12 police officers and nine firefighters. But the city hasn't been able to fill all of the public safety staff positions budgeted under Measure C this year, so the Measure C citizens oversight committee voted to shift $1.5 million in unspent dollars to the South Merced slurry seal and other projects. Unfortunately it's only a drop in the bucket," Councilman Bill Spriggs said. "When you look at the (road repair) needs and you look at what we're able to fund, it's scary." ...Spriggs took the opportunity to remind voters that if they had passed Measure G last June, the city would have more cash to spend on road fixes. The ballot measure would have created a half-cent tax to generate $446 million over the next 30 years for transportation projects. About half the money would have been earmarked for road maintenance, Spriggs said. Voters rejected the measure twice in 2006, but supporters said after the June election that they'll probably put the tax before voters again soon. "I hope the voters will understand when we put a tax measure on the ballot again we are spending every cent we have right now and it's not even scratching the surface," Spriggs said.

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Re: General Plan Text Amendment on Expressways

Submitted: Dec 20, 2006

MARSHA A. BURCH
ATTORNEY AT LAW
131 South Auburn Street
GRASS VALLEY, CA 95945
Telephone:
(530) 272-8411
Facsimile:
(530) 272-9411
maburch@onemain.com

December 19, 2006

Mr. Gene K. Fong
Federal Highway Administration
U.S. Department of Transportation
980 Ninth St, Suite 400
Sacramento, CA 95814
916-498-5014
gene.fong@fhwa.dot.gov

Margaret Lawrence
Caltrans
P.O. Box 2048
Stockton, CA 95201
209-948-7427
fax 209-948-7782
Margaret_Lawrence@dot.ca.gov

Merced County Board of Supervisors
2222 M Street
Merced, California 95340
Fax: (209) 726-7977
Ph: (209) 385-7366

dist1@co.merced.ca.us ; dist2@co.merced.ca.us ;
dist3@co.merced.ca.us ; Dist4@co.merced.ca.us ;
dist5@co.merced.ca.us

Via facsimile and Email

Re: Proposal -- To amend the Merced County General Plan Circulation
Chapter (Chapter II) by establishing an expressway standard and
designate an expressway alignment, known as “Campus Parkway”,
east of the City of Merced from Coffee Street to Yosemite Avenue.
Campus Parkway will be approximately a 4.5-mile route; and 2006
Cycle IV General Plan Amendment: General Plan Text Amendment
No. GPTA06-001- Campus Parkway.

Dear Supervisors, Mr. Fong and Ms. Lawrence:

This office, in conjunction with the Law Office of Donald B. Mooney,
represents the Central Valley Safe Environment Network, San Joaquin Raptor Rescue Center and Protect Our Water with respect to the above-referenced proposal for General Plan Text Amendment.

We appreciate the opportunity to provide the following comments, which are submitted this morning as a result of the fact that, despite considerable effort, our clients were unable to obtain the Merced County Board of Supervisors, staff report for the proposed amendment until approximately 3:30 p.m. yesterday.

The Proposed Text Amendment does not comply with the California
Environmental Quality Act (“CEQA”) (Public Resources Code § 2100 et seq.) Accordingly, we request that the Board of Supervisors deny the Proposed General Plan Text Amendment, and reject adoption of the Campus Parkway CEQA Findings of Fact, Statement of Overriding Considerations, and Mitigation Monitoring Program.

The Amendment includes two separate projects. The first project is an
amendment to General Plan that will apply County-wide. The second
discretionary approval would designate an expressway alignment.
These two projects require separate environmental review. There has been no environmental review that we are aware of for the County-wide expressway standard, nor any review of the expressway alignments other than the Campus Parkway. The two projects may not legally be lumped together without appropriate review of all of the discretionary acts.

It appears that the entire proposal, including the expressway standard and alignments, will be based upon the EIR for a 4.5-mile route. It appears that two other expressways are planned to join with the Campus Parkway: the Atwater- Merced Expressway and the Bellevue Expressway. These additional expressways are not mentioned in the Campus Parkway Environmental Impact
Report (“EIR”). There are also plans for expressways on the west side of Merced County, which have not been the subject of any CEQA review that we are aware of.

Because of the fact that there has been no environmental review of the
consequences of this amendment to the General Plan, the proposal must be rejected. Sufficient environmental review must take into account the consequence of its cumulative impacts to traffic, air and water quality, public health and safety, and particularly impacts to biological resources and wildlife corridors. Also, the amendment will necessarily result in the loss of a considerable amount of agricultural land, a consequence completely at odds with the General Plan goal of preserving it. This significant conflict with the existing general plan must also be considered during the CEQA process.

Other potentially significant impacts exist, none of which have been the subject of any CEQA review. For example, the potential impacts to private property, including potential for condemnation in the future, that will arise as a result of expressway alignment designations has not been considered or reviewed. Also, the essence of the expressway designation under the state Streets and Highways Code is fully controlled access. By severing county roads used by farmers and ranchers for trucking and agricultural equipment, this
amendment cannot fail to disrupt normal agricultural practices with consequent economic damage.

Also, County staff reports that the Campus Parkway will take 83 acres of agricultural land out of farming but this is “below the threshold of significance established by the Federal Highway Administration,” and the County has no “significance” standard for agricultural lands.

The County sees no problem because the “land use designation
underlying the Campus Parkway will remain Agriculture.” Under this
reasoning, the County, Merced County Associations of Government, the state Department of Transportation and the FHWA could pave over thousands of acres of farmland in Merced County through this General Plan amendment and still account for them as “Agriculture.” This violates planning and zoning laws.

If the expressways already mapped by MCAG and CalTrans are built, the County will be carrying thousands of acres on its zoning maps as “Agriculture,” which will in fact be paved over expressways with “fully controlled access.”

Furthermore, by piecemealing one section of expressway after another, a process that would be enabled by this General Plan amendment, the County would stay beneath the federal threshold for significance, insuring that no state or federal funds could be used for agricultural conservation easements. This results in the untenable situation summed up by County staff as follows: “Thus,
the only potential funding source for agricultural conservation easements is Merced County. No budget exists in the Department of Public Works for the acquisition of agricultural conservation easements.”

One option for the Atwater-Merced Expressway passes close to the
Riverside Motorsports Park (“RMP”). But, said one supervisor at the last meeting on the RMP project, the Atwater-Merced Expressway cannot be discussed in connection with traffic jams around RMP because that expressway “is not a project” (although its alternative routes are mapped and posted on the MCAG website – see attachments).

The proposed General Plan amendment attempts to circumvent the
environmental review for the entire projected expressway system in Merced County by relying upon the EIR for 4.5 miles of expressway. Further, the proposal appears to intentionally deprive agriculture of state and federal funds for conservation easements on lost agricultural land. This bold attempt to create fictional Agriculturally zoned areas should be rejected, as it violates environmental, land use, and agricultural preservation laws.

An additional funding issue has also received no review or discussion. It appears that County plans to divert funds remaining in the transportation budget to the construction of the Campus Parkway. Further analysis and public disclosure is necessary in this regard.

Because of the issues raised above, we believe that the proposal fails to meet the requirements of the California Environmental Quality Act.

For these reasons, we believe the proposal should be withdrawn and appropriate environmental review completed prior to further consideration.

If you have questions regarding the above, please feel free to contact me at 530/272.8411.

Sincerely,

Marsha A. Burch
Attorney
MAB/tm
Enclosures

cc: Central Valley Safe Environment Network
San Joaquin Raptor Rescue Center
Protect Our Water
Donald B. Mooney, Esq.
Steve Rough, County of Merced Public Works, srough@co.merced.ca.us
Demitrios O. Tatum, County Executive Officer; ceo@data.co.merced.ca.us
Robert Lewis, Development Service Director , RLewis@co.merced.ca.us
Kursten Sheridan, Caltrans , Kursten_Sheridan@dot.ca.gov
Kim Turner, U.S. Fish and Wildlife, Turner/SAC/R1/FWS/DOI@FWS

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Grassrooters' factual flyer on the racetrack

Submitted: Dec 11, 2006

THE OPPONENTS OF RMP WANT YOU TO KNOW:
The attitude of Riverside Motorsports Park and Merced County government toward your environment, health and public safety is: Gentlemen, start your engines, put your pedal to the metal and pass every law and regulation protecting public health and safety on the right as fast as you can.

RMP Chief John Condren claims he’s got your elected officials in his pocket.

Although it’s too early to start planning a ground-breaking party, we can report that RMP has won the support of 4 of the 5 members of the Merced County Board of Supervisors … and we may succeed in securing the unanimous support of the Board once the EIR is released. In addition, RMP has secured the approval and support of State Senator Jeff Denham, US Congressman Dennis Cardoza, 5 Chambers of Commerce within Merced County, the City Councils of Atwater and Merced, and RMP has the support of the California Builders Industry Association. Added to this list are over 1,500 local Merced County citizens who have signed to be on our project update mailing/e-mail list.

--Riverside Motorsports Park, 1 January 2005 “To all our valued investors and supporters, Happy New Year!”

A quorum of supervisors should be disqualified from voting on this project at all, when a developer is bragging that loudly about how he owns them. To begin with, Jerry O’Banion and Kathleen Crookham. O’Banion is widely known as having steered the project from the west side to its present location. Crookham gave a promotional talk on the RMP project before the Clipper Club at Central Presbyterian Church. Their involvement with the project ought to disqualify them from voting on it.

In a January 1, 2005 letter to RMP investors, Condren claimed:
· The traffic plan for the project was complete; NOT TRUE
· Zoning restrictions pertaining to noise impacts have been amended such that unlimited Motorsports activities
may occur without additional restrictions; NOT TRUE
· The RMP Master plan is approved; NOT TRUE
· RMP event schedule will include all the largest names in motorsports. NOT TRUE

Two years later, there is no traffic plan; the EIR simply states that the noise level from auto racing is a “significant, unavoidable impact” to be overridden by a vote of the supervisors; the RMP master plan is only a draft that will be rewritten after – not before – the supervisors approve the project; while RMP tells its investors it will draw all the big names in auto racing (and hundreds of thousands of spectators), it tells the locals the eight tracks in the project will be almost exclusively for local car clubs, drawing only a few thousand spectators.

The Big Consultants Shuffle. The County recommended a firm it has done a great deal of work with, including the lion’s share of planning for UC Merced. It couldn’t come up with a traffic plan, so RMP replaced them with another firm willing to say there is a traffic plan when there isn’t one.

RMP wrote its investors two years ago the traffic studies are all done by Jan. 2005. At the Nov. 15 public hearing on the project, county Public Works informed the public there was no traffic plan. The RMP traffic consultant agreed: there is no traffic plan beyond waiting to see what roads spectators choose.

On Nov. 28, for the first time, county Public Works informed the people of Delhi, that Shanks Road, El Capitan and Palm were going to be a major thoroughfare for race traffic until two weeks ago, that some county roads would need to be widened, which might call for eminent domain if residents and RMP cannot agree on prices.

Who are RMP’s investors? These people are presumably underwriting a project that will significantly worsen our already severe air pollution, fill our country roads with frequent, periodic traffic jams, and fill our ears with the din of racecar engines. The Merced public has a right to view a full financial disclosure statement on who these people are who are investing in the destruction of our environment – before the supervisors we elected vote to approve this project. The public needs to ask how much RMP investor money will end up in campaign coffers of officials we elect.

Indemnification. The County and RMP have an agreement:

Indemnification and Hold Harmless
Approval of this Project is for the benefit of Applicant. The submittal of applications by Applicant for this Project was a voluntary act on the part of the Applicant not required by the County. Therefore, as a condition of approval of this Project, the Applicant agrees to defend, indemnify and hold harmless the County of Merced and its agents, officers, employees, advisory agencies, appeal board or legislative body of Merced County (collectively, “County”) from any and all claims, actions and proceedings against the County to attack, set aside, void, or annul an approval by the County concerning the Project occurring as a result of the action or inaction of the County, and for any and all costs, attorneys fees, and damages arising
therefrom (collectively, “Claim”).”

– INDEMNITY AND HOLD HARMLESS AGREEMENT BETWEEN COUNTY OF MERCED AND RIVERSIDE MOTORSPORTS PARK, LLC, Sept. 12, 2006.

This agreement allows the County to approve this project without taking any responsibility for these new, impacts to our environment added on top of UC Merced and its induced housing boom – air, traffic and noise – because they aren’t liable for legal costs.
However, the County has not yet signed the agreement. nor did they include it in the conditions in the staff report on the project.

Water. A year ago, Board Chairman Mike Nelson misspoke, saying Atwater would supply RMP with potable water. Winton doesn’t have enough water. Water Castle is supplying off-base residents is contaminated. So, where’s the drinking water?

Overweening control of Planning Director.

Modifications to the Development Plan and Administrative Permit may be approved administratively by the Planning Director if determined consistent with the intent of the Master Plan, the RMP EIR, and the procedures and finds defined in Section 18.50.02(D) of the Merced County Zoning Code.

-- P. 7-1, RMP Draft Master Plan

This means that planning director, in concert with RMP, can change the plans for the project any way they want to, unless the public challenges it. In other words, the planning director works from RMP, not for you.

Conflict of interest. The Merced County Board of Supervisors is the land-use authority for all unincorporated land in the county. But, it is also the land-use authority for the former Castle Air Force Base. The RMP project, which adjoins Castle, cannot be approved until the board overrides the noise-zone for the Castle airport established by the airport commission. The board plans to do this on Dec. 12. But, these are two separate actions, both with large consequences to the noise level, and the airport override must be analyzed in the RMP environment impact report. The County did not do that. In fact, there is no analysis on the environmental, public health and safety impacts from this decision. The County is in conflict of interest on these two projects.

Contempt for the public. The County did not make the new staff report to the public (including state and federal agencies) available until 4:30 p.m. on Monday, the day before the hearing. Nothing could better express the County’s complete contempt for the public and favoritism for special development interests. It also perfectly expresses the County’s lack of respect for law and elemental fairness. In violation of public access provisions within the California Environmental Quality Act, the public has not been allowed to view the working file of this project without recourse to the state Public Records Act. This is illegal.

The lack of analysis of cumulative economic and environmental impacts from the chaotic growth in Merced requires the public to demand a moratorium on any more projects not already approved by appropriate local, state and federal agencies. RMP is not approved by the appropriate agencies, therefore the board should not approve it before the county general plan has been fully updated in a legally compliant fashion.

The board of supervisors must deny the Riverside Motorsports Park General Plan Amendment No. GPA03-005, Zone Change Application No. ZC03-007, the Board of Supervisors’ override of the Castle Airport Land Use Commission, the Environmental Checklist, the Notice of Application, Draft Master Plan, Draft EIR, Final EIR, Appendices to Vol. 2, Response to Comments, Vol. 1, Staff Report, Findings, Resolutions and Overrides, and Indemnification.

The process that produced these documents was seriously flawed by

· an inadequate project description that can be modified at will by administrative decision without public review;
· serious conflicts of interest involving at least two members of the board voting on the project and the applicant’s claims nearly two years ago that he already had a super-majority of supervisors in his pocket;
· segmenting and peacemealing the entirely different project of the override of the Castle Land Use Commission decision, which requires its own EIR;
· deliberate failure of the County to make essential project documents available to the public in a timely manner;
· failure of the land-use authority to perform its mandatory duty to consult federal resource regulatory agencies on the environmental impacts of the proposed project;
· failure to do any analysis on the economic impacts of the proposed project on the Castle Commercial-Aviation Economic Development area;
· failure of the County to do cumulative economic impact studies on the impacts of this proposed project and other commercial, growth-inducing anchor tenants;
· failure of the County to consider the negative impact on the proposed project of the third failure of the transportation tax measure;

OPEN APPEAL TO MERCED COUNTY BOARD OF SUPERVISORS

Dear Supervisors Pedrozo, Crookham, Nelson, Kelsey and O’Banion: November 27, 2006

Thank you, Supervisor Deidre Kelsey, for scheduling three town-hall meetings this week to address the immediate impacts that the proposed Riverside Motorsports Park will have on your district. We would ask that supervisors Pedrozo, Crookham, Nelson and O’Banion also schedule meetings in their districts and listen to their constituents’ concerns about the RMP project.

Town-hall meetings are not formal hearings and we question how much impact they will have. However, the Board of Supervisors has closed the public hearing. At this stage, town-hall meetings appear to be the best way we have to afford citizens the opportunity to participate in the process.

At the close of the public hearing on RMP, there was still no traffic plan. The traffic study that had been done was based on a flawed, deceptive traffic count in the wrong season for either agricultural harvests or auto racing. This is unacceptable to the public.

The RMP project proposes that District 4’s rural two-lane roads be used as highways for thousands of cars to reach the raceway site. The RMP project will negatively impact the roads, environment and public health and safety of other districts as well. Districts 1, 2, and 3 (Livingston, Atwater & Merced) will be impacted by traffic congestion, slowed response by emergency vehicles, noise, and air quality threats of the project.

All residents will be impacted by road deterioration. Our nationally recognized air pollution could ultimately cause the federal government to stop highway funds until we make greater efforts to clean up our air. We will then be asked to raise our taxes to fix the roads because development does not pay its way.

All Merced County residents will be impacted when the Board of Supervisors lowers the standards of our out-dated General Plan to accommodate the RMP project. The Board should not even consider projects with the massive impacts of RMP before it updates the county General Plan.

We request that the Board of Supervisors do the following:

· hold meetings in all the districts and be accountable to those that elected you to represent our County, not developers’ interests;
· re-open the public hearing on RMP, since about 50 people were not able to testify at the last hearing;
· re-circulate RMP environmental documents to allow the public to review RMP’s and the Planning Department’s responses to public testimony;
· re-circulate RMP environmental documents to allow the public to review the traffic study, which was not finished at the time of the public hearing.
· not decide on RMP or other large development projects before the County has finished updating its General Plan.

Thank you.
Tom Grave
Merced County- Citizens Against the Raceway

WHAT YOU CAN DO:

Write and call your supervisor and tell them to reopen the public hearing and/or deny this project.

Attend Board of Supervisor meetings on Dec. 12 at 5 p.m. and on Dec. 19 at 10 a.m.

Write and call Congressman Cardoza, whose wife is a doctor.

Write and call state Sen. Jeff Denham and Assemblywoman Cathleen Galgiani.

Paid for by Citizens Against RMP

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Vote NO on Measure G

Submitted: Nov 06, 2006

The Central Valley Safe Environment Network urges you to vote NO on Measure G.

A flyer against the Merced County Transportation Tax Measure G appeared in the Merced Sun-Star Monday morning. We have included it below and attached it to this message.

We have also attached a letter from an attorney representing CVSEN and others demanding compliance with several state Public Record Act requests to Merced County and Merced County Association of Governments that were made since the Primary Election on Measure G. We have also attached the last weeks’ letters and articles about Measure G. These attachments are printed out below for Badlands readers.

We urge you to read and share these flyers with Merced County residents before the Election on Tuesday, November 7.

The enclosed flyer explains why: this measure is the same old Measure M and Measure A you have already voted down. Merced County, one of the state's poorest counties, does not support a sales tax increase that would fall heaviest on the poorest members of our community, to pay for the developer special interests who refuse to pay for the impacts of their project.

Far from protecting the community from this exploitation of land, air quality and water, local government is its most enthusiastic supporter. But this gang can't shoot straight and a growing list of irregularities in public process surround Measure G:

It is misnamed "Measure A" in campaign literature;
It's collection is retroactive, beginning a month before the measure is voted on;
Financial contributions are comminged between measures A and G;
Procedural problems have plagued Measure G ever since you voted down Measure A in June of this year.

We ask you to read the attachment and realize how important it is for you to vote NO Measure G on Tuesday.

Sincerely,

Central Valley Safe Environment Network

Opponents of Measure's M and A encourage your 'No" Vote on Measure G
1-2-3: Defeat Measures M,A, and G!

-------------------
VOTE NO ON MEASURE G FLYER

Well, here we are again, folks, another election, another sales tax hike to pay for more roads to stimulate more growth, traffic and air pollution in Merced County. Measure G would also do its little bit to heat up the planet, while giving UC Merced that nice new Parkway so its folks can get out of Merced and find some real fun. The Measure G supporters have the same arguments; you and we have our same arguments. Nothing has changed. If Measure G fails, look for identical measures, X,Y and Z on the next three ballots. The politicians and their contributors want growth. Their growth doesn’t help us.

But, what kind of tax hike? Is it a half-cent or a half-percent? Can you tell from reading the County Measure G Information Guide? Does the car dealer collect a half-cent more tax or a half-percent more sales tax on the sale of a car? Does whoever wrote the measure know the difference between a half-cent and a half-percent?

Retailers! Check it out! According to Measure G, you’re going into your Christmas season obligated to start paying additional sales taxes from Oct. 1, 2006? Is that fair? Is it even legal?

And what measure are we voting on? In the information guide it is also called Measure A. Should officials this sloppy at writing laws be trusted with more pots of public funds?

Public and private developers want your government to persuade you to pay for their growth impacts on your community:

UC Merced is trying to weasel out of $200 million in traffic, police and fire impacts to the Merced community:

“In the CEQA process for the campus …local jurisdictions indentified approximately $200 million in improvements to local roads, parks and schools that they claimed would be made necessary by the new campus development, and argued that UC was obligated to pay for those improvements under CEQA. UC rejected those demands … in light of its exemption under the California Constitution.”

(UC General Counsel James Holst amicus letter to California Supreme Court re. City of Marina et al, Sept. 12, 2003

John Condren, CEO of Riverside Motorsports Park, claimed to his investors he wired local government:

“Although it’s too early to start planning a ground-breaking party, we can report that RMP has won the support of 4 of the 5 members of the Merced County Board of Supervisors … and we may succeed in securing the unanimous support of the Board once the EIR is released. In addition, RMP has secured the approval and support of State Senator Jeff Denham, US Congressman Dennis Cardoza, 5 Chambers of Commerce within Merced County, the City Councils of Atwater and Merced, and RMP has the support of the California Builders Industry Association. Added to this list are over 1,500 local Merced County citizens who have signed to be on our project update mailing/e-mail list”

(Riverside Motorsports Park, 1 January 2005 “To all our valued investors and supporters, Happy New Year!”)

Ranchwood Homes owner cozies up to a supervisor while digging a mile-long, 42-inch, illegal sewer line in county jurisdiction outside of Livingston:

“Mrs. Crookham, this is Greg Hostetler calling. My cell number actually is 704-13** if you need to call me. I’m on a cell phone cause my other battery I’m trying to save that, preserve it you know. I’m into preserving things too from time to time, but anyway, uhm, I’m just calling you, uh, to let you know that…ah if you don’t already know… that we’ve had a lot of drama and trouble in the county … everywhere I do business [inaudible] apparently I guess because of Mrs. uh…Mrs. Deirdre Kelsey ah… thinks staff may need some help, because she’s climbing all over them… using [inaudible] staff for her personal pit bulls…trying to bite our people, and our staff — this is my opinion — causing a lot of drama in Livingston, for the City of Livingston and we’re trying to uh in the progress of uh in the process of installing a sewer line over there. If you haven’t talked to Dee Tatum, he could fill you in on what’s going on over there. But uh this probably will not end any time soon. So, I just wanted to give you the update, and if you could give staff any help I’d appreciate it… Thank you!”

(Badlandsjournal.com, March 10, 2006)

1-2-3: Defeat Measures M, A, and G!

Citizens Against Measure G
VOTE NO ON MEASURE G

Here is a partial list of residential developments ALREADY planned for Merced County.

This represents 81,000 new homes for our county.

Atwater - 1,584 units, Atwater Ranch, Florsheim Homes, 400 acres
2,522-3,403 units, Willow Creek, Pacific Union Homes, 662 acres

Delhi - 1,100 units, Matthews Homes

Fox Hills - 907 units, Fox Hills Estates, north expansion
337 units, Fox Hills Estates, central expansion
1,256 units, Fox Hills Estates, south expansion

Hilmar-3,700 units, JKB Homes

Livingston - 1,200 units, Ranchwood Homes

Los Banos, 3 developments covering 932 acres, Ranchwood Homes 635 units, Woodside Homes 15.000 homes, Villages of Laguna San Luis, by Los Banos, 3,600 acres

City of Merced - 11,000 units, Merced University Community Plan, 7,000 units, Bellevue RanchM 7,800 units, Ranchwood Homes
442 units, Vista Del Lago, 920 units, Fahrens Creek II, 1,282 units, Fahrens Creek North. 1,093 units, Hunt Family Annexation, 4,576 units Mission Lakes, Ranchwood Homes

Other smaller projects totaling over 2,000 additional units in the works

Planada- 4,400 units, Village of Geneva at Planada
San Luis Creek 629 units, F & S Investments
San Luis Ranch - 544 units
Santa Nella - 8,250 units by 2012 (Gustine City Council minutes)
Stevinson - 3,500 units, Stevinson Ranch/Gallo Lakes Development

1-2-3: Defeat Measures M, A, and G!
Citizens Against Measure G

VOTE NO ON MEASURE G

Developers want to have you pay for growth impacts instead of paying for their impacts themselves.

Measure G Contributions
Reporting from Committee for Measure G

Alice Gilbertson Atwater $100.00
Gray-Bowen & Company Walnut Creek $250.00
Bender Rosenthal Inc. Sacramento $250.00
Jones & Stokes Ass. Sacramento $250.00
Bandoni, INC Merced $250.00
Parikh Consultants Milpitas $300.00
Cornerstone Structural Fresno $500.00
Roger Wood Atwater $500.00
Maxwell Construction Merced $500.00
Terry Allen Merced $500.00
Central Valley Housing Solutions Merced $750.00
Building Industry Ass of Central CA Modesto $1,000.00
Engeo Incorporated San Ramon $1,000.00
Moreno Trenching Inc Rio Vista $1,000.00
Stevinson Ranch-Savannah G.P. Stevinson $1,000.00
Merced Booster Club Merced $1,000.00
Delhi Properties Modesto $1,000.00
Kleinfelder San Diego $1,000.00
Circle Point San Francisco $1,500.00
Diepenbrock Harrison, A Prof. Corp Sacramento $1,500.00
Dowling Associates, Inc. Oakland $1,500.00
Wreco Walnut Creek $1,500.00
Fremming, Parson & Pecchenino Merced $1,500.00
Coldwell Banker Gonella Realty Merced $1,600.00
Mill Creek Development Alamo $2,000.00
Northern California District of Laborers Sacramento $ 2,500.00
Omni-Means, Engineers & Planners Roseville $2,500.00
Werner Co Merced $2,500.00
P G & E Corporation San Francisco $2,500.00
Jesse Brown Merced $2,698.89
Delhi LLC Pleasanton $3,000.00
Home Builders Stockton $3,000.00
Pristine Home Corporation Stockton $3,000.00
Maxwell Construction Merced $ 3,100.00
Robert T Haden Professional Corp Merced $3,200.00
Charles Lyons Modesto $3,333.32
Edward Lyons Modesto $3,333.32
Louise Bogetti Modesto $3,333.32
Lynne Bogetti Modesto $3,333.32
Jane Conover Modesto $3,333.36
William Lyons Modesto $3,333.36
Alia Corporation Merced $4,750.00
Lyons Land and Cattle Co Modesto $5,000.00
Dole Packaged Foods Thousand Oaks $5,000.00
Golden Valley Eng & Survey Inc Merced $5,200.00
Sierra Beverage Company Merced $5,500.00
Mark Thomas & Company San Jose $6,000.00
John Sessions Seattle $7,500.00
Jaxon Enterprises Redding $10,000.00
Robert Alkema/Malibu Merced $10,000.00
Team 31, Inc. Morgan Hill $10,000.00
Wellington Corp of Northern CA Morgan Hill $10,000.00
Anderson Homes Lodi $10,000.00
Calaveras Materials Fresno $10,000.00
Basic Resources, Inc. Modesto $10,000.00
Lakemont LWH LLC Roseville $10,000.00
3rd Millennium Investment Fresno $15,000.00
Ferrari Investments Ballico $15,000.00
Foster Poultry Farms Livingston $15,000.00
JBK Homes Turlock $15,000.00
E&J Gallo Winery Modesto $17,500.00
K Hovanian Forecast Homes Sacramento $20,000.00
Atwater East Investors Danville $25,000.00
Ranchwood Homes Corp Merced $25,150.00
A Teichert & Son Sacramento $27,500.00
Crosswinds Development Novi, MI $30,000.00
Antioch Aviation Ass. Sacramento $40,000.00
Brookfield Castle Del Mar $43,000.00

CENTRAL VALLEY SAFE ENVIRONMENT NETWORK
MISSION STATEMENT
Central Valley Safe Environment Network is a coalition of organizations and individuals throughout the San Joaquin Valley that is committed to the concept of "Eco-Justice" -- the ecological defense of the natural resources and the people. To that end it is committed to the stewardship, and protection of the resources of the greater San Joaquin Valley, including air and water quality, the preservation of agricultural land, and the protection of wildlife and its habitat. In serving as a community resource and being action-oriented, CVSEN desires to continue to assure there will be a safe food chain, efficient use of natural resources and a healthy environment. CVSEN is also committed to public education regarding these various issues and it is committed to ensuring governmental compliance with federal and state law. CVSEN is composed of farmers, ranchers, city dwellers, environmentalists, ethnic, political, and religious groups, and other stakeholders
P.O. Box 64, Merced, CA 95341
---------------------

Marsha A. Burch
Attorney at Law
131 South Auburn Street
Grass Valley CA 95945

November 6, 2006

Via Facsimile and U.S. Mail

M. Stephen Jones
Auditor-Controller-Registrar of Voters
Merced County
2222 M. St.
Merced CA 95340

Jesse Brown
Executive Director
Merced County Association of Governments
369 W. 18th St.
Merced CA 95340

Re: Public Records Act Requests Regarding Measure G

Dear Mr. Jones and Mr. Brown:

This office, in conjunction with the Law Office of Donald B. Mooney, represents the Central Valley Safe Environment Network, San Joaquin Raptor Rescue Center, Protect Our Water and Lydia Miller. This letter serves to notify you that our clients have repeatedly attempted, via California Public Records Act (“CPRA”) Requests, over the past three months to obtain information regarding Measure G. These efforts have resulted in very little documentation, and this letter serves as a demand for compliance with the CPRA, and to notify you that there may be inconsistencies in the information provided to voters regarding Measure G. For example, our clients have not received the full text of Measure G, but have only been provided with summaries of the Measure. At this point, a day before the General Election, the public has reason to doubt that there is a full text of Measure G. Also, none of the correspondence, meeting agendas or minutes, or any other documents related to the development of Measure G have been provided. Our clients have not received any of the requested documentation or correspondence relating to One Voice, California Partnership for the San Joaquin Valley, the San Joaquin Valley Regional Blueprint, Great Valley Center or any other state or federal agencies and their communications regarding Measure G. Further, our clients have not received documents relating to the Merced County Transportation Alliance’s activities relating to Measures A and G.

It is not possible to confirm the nature and scope of any errors in the sample ballot or voter pamphlet information, as we have not had an opportunity to review relevant documentation. For example, the Measure G Voter Information Pamphlet contains a confusing description of the Measure G tax as a “1/2-cent” tax (pp. 24G1-24G2), and elsewhere as a “1/2-percent tax.” We have not been able to obtain and review the full and final text of Measure G, and so it is unclear whether this inconsistency is significant.

With respect to the effective date of the new tax (p. 24G5), the pamphlet says, “It will begin on Oct. 1, 2006.” It appears that the County seeks voter approval of a retroactive sales tax, but without access to relevant information, we have been unable to confirm that this is the case.

A series of CRPA requests (August, 17, August 25, September 8 ) submitted to both Merced County and Merced County Area Governments were shuffled back and forth between the two agencies and much of the information requested was not given by either agency. On August 18, 2006, both MCAG and the county Elections Office replied. Our clients received a response on September 12, 2006 from MCAG. On September 11, 2006, the County Elections Office provided a response. On September 18, 2006, our clients received a response from County Counsel. On October 5th, 26th and 27th, our clients went to the county Elections Office to view documents. Although officials made themselves available, they did not make most of the requested material available.

It appears that the Sample Ballot and Voter Information Pamphlets contain confusing information regarding Measure G. This is of great concern to our clients, who have been working since August in an attempt to understand Measure G through review of relevant documents and records. Because of their inability to gain access to the relevant records, our client remain concerned, but do not have sufficient information to come to any specific conclusions regarding the voter information.

Our clients are also concerned about the accounting of campaign contributions for Measures A and G. These funds appear to be commingled. It is understandable that if a candidate wins a primary election or gets enough votes to gain a runoff, campaign finance accounting could roll over the amounts into the general election period. However, we are concerned that, since Measure A was defeated in the primary election, accounting that presents cumulative contribution amounts in Measure G accounts that include Measure A contributions is irregular.

With respect to these accounting issues, however, our clients have not received documents related to the accounting for campaign contributions from the County and the Cities for Measures A and G in response to the CPRA requests, and so have not been able to review and assess the accounting documents.

We urge you to provide the information without further delay. If you have any questions regarding the above, please feel free to contact me.

Very truly yours,

Marsha A. Burch
Attorney

cc: Central Valley Safe Environment Network
San Joaquin Raptor Rescue Center
Protect Our Water
Lydia Miller
Donald B. Mooney, Esq.
James Fincher, Merced County Counsel (Via Facsimile)
-------------------------------

Comments on Measure G
November 4th, 2006
BadlandsJournal.com
by Bill Hatch
Members of the public concerned that Merced County and Merced County Association of Governments immediately recycled Measure A as Measure G after the Primary Election defeat of Measure A, tried repeated times, via California Public Records Act requests, to obtain accurate, complete information about Measure G. Errors and inconsistencies appeared in both the County sample ballot and Measure G Voter Information Pamphlet.

Without the opportunity to view the documents before they were published, the public was unable to spot the errors and advise the County of them. Although officials made themselves available, they did not make most of the requested material available, critics of Measure G said Saturday.

The Measure G Voter Information Pamphlet, for example, calls the measure a “1/2-cent” tax on one page and a “1/2-percent” tax on another. Which is it: a half-cent sales tax per transaction or a half-percent per dollar sales tax on all transactions? local activists asked.

This is misleading “information.” If it was not deliberately misleading, the public might have provided a helpful review of this propaganda-as-information before it was sent to every registered voter in the county between Oct. 10 and Oct. 16.
The publicly funded Measure G “information” pamphlet, printed to look exactly like a sample ballot pamphlet, also informs the public that the tax will start on “Oct. 1, 2006.” If Merced County retailers, going into the Christmas season, had been allowed to review this document, they would probably have objected to this retroactive, probably illegal tax, critics of Measure G noted.

Members of the public also expressed concern about the accounting of campaign
contributions for measures A and G, which appear to commingle funds from both campaigns. Measure A failed in the Primary. Measure G is a different campaign by a different name in the General Election. Yet, local researchers found, the County recorded contributions to both campaigns as one campaign fund. This may be yet another irregularity in Merced County elections administration.

Another irregularity critics point out is that MCAG or the County or both of them have appointed a citizens oversight committee to monitor the spending of Measure G funds before the citizens have even voted on Measure G, which may or may not be the same as Measure A, but no one is quite sure because neither the County or MCAG have released the actual text of Measure G to the public for review. By the way, neither proponents nor opponents of Measure G, whose comments are printed in the sample ballot, were allowed to see the official text of Measure G, on which they commented.

The public is also concerned about the accounting of campaign contributions for
measures A and G. These funds appear to be commingled. It is understandable that if a candidate wins a primary election or gets enough votes to gain a runoff, campaign finance accounting could roll over the amounts into the general election period.

However, critics are concerned that, since Measure A was defeated in the primary election, accounting that presents cumulative contribution amounts in Measure G accounts that include Measure A contributions is irregular.

Critics of the county planning process are also concerned about a transportation plan promoted by the Merced County Association of Governments that is separate and unrelated to the proposed update to the county General Plan and numerous city and community plan updates now in progress. It looks like whenever lawful planning processes threaten, developers in Merced just pile on another layer of plans and more taxes on the people.

On Friday, the federal court ruled to bar certification of the elections in four Merced cities due to violations of the Voting Rights Act. County elections irregularities appear to be multiplying. Meanwhile, Rep. Dennis Cardoza sits on the third floor of the Merced County Administration building, presumably mulling his economic options as the County administration crumbles beneath his feet, noted one critic of government in Merced County.

Critics of Measure G speculated that the campaign for Measure G might achieve $1 million in campaign funding. However, the public will not know until the last campaign finance period is reported, well after the General Election.
Measure G remains a regressive tax: an increase on sales tax that will fall hardest on the poorest for the benefit of the richest.
---------------------------

ARTICLES AND LETTERS IN THE PRESS THAT RAISE CRITICAL PROBLEMS WITH MEASURE G

Nov. 6, 2006

Merced Sun-Star
Attachments: (2, 4 pages)
Opponents of Measure's M and A encourage you "No Vote on Measure G...Paid for By The Citizens Against Measure G

Well, here we are again, folks, another election, another sales tax hike to pay for more roads to stimulate more growth, traffic and air pollution in Merced County. Measure G would also do its little bit to heat up the planet, while giving UC Merced that nice new Parkway so its folks can get out of Merced and find some real fun. The Measure G supporters have the same arguments; you and we have our same arguments. Nothing has changed. If Measure G fails, look for identical measures, X,Y and Z on the next three ballots. The politicians and their contributors want growth. Their growth doesn’t help us.
But, what kind of tax hike? Is it a half-cent or a half-percent?
UC Merced is trying to weasel out of $200 million in traffic, police and fire impacts to the Merced community: “In the CEQA process for the campus …local jurisdictions indentified approximately $200 million in improvements to local roads, parks and schools that they claimed would be made necessary by the new campus development, and argued that UC was obligated to pay for those improvements under CEQA. UC rejected those demands … in light of its exemption under the California Constitution.” (UC General Counsel James Holst amicus letter to California Supreme Court re. City of Marina et al, Sept. 12, 2003

Nov. 5, 2006

Attachment:
BadlandsJournal.com
Comments on Measure G...Bill Hatch
...11-4-06
Members of the public concerned that Merced County and Merced County Association of Governments immediately recycled Measure A as Measure G after the Primary Election defeat of Measure A, tried repeated times, via California Public Records Act requests, to obtain accurate, complete information about Measure G. Errors and inconsistencies appeared in both the County sample ballot and Measure G Voter Information Pamphlet.
Without the opportunity to view the documents before they were published, the public was unable to spot the errors and advise the County of them. Although officials made themselves available, they did not make most of the requested material available, critics of Measure G said Saturday.
The Measure G Voter Information Pamphlet, for example, calls the measure a “1/2-cent” tax on one page and a “1/2-percent” tax on another. Which is it: a half-cent sales tax per transaction or a half-percent per dollar sales tax on all transactions? local activists asked.
This is misleading “information.” If it was not deliberately misleading...
Members of the public also expressed concern about the accounting of campaign contributions for measures A and G, which appear to commingle funds from both campaigns. Measure A failed in the Primary. Measure G is a different campaign by a different name in the General Election. Yet, local researchers found, the County recorded contributions to both campaigns as one campaign fund.

Nov. 4, 2006

Merced Sun-Star
Citizens group to monitor spending....Leslie Albrecht
http://www.mercedsunstar.com/local/story/12973310p-13624687c.html
Opponents of Measure G say they don't trust local officials to spend their tax money wisely. Supporters of the half-cent sales tax say a citizens advisory committee will serve as watchdogs, keeping close tabs on the $446 million the tax would raise for transportation projects around the county. Who are these watchdogs? The same people who helped decide which transportation projects Measure G would fund. No new committee will be formed to monitor Measure G spending; instead, the citizens group that already advises the Merced County Association of Governments will take on the responsibility of monitoring the money. MCAG's citizens advisory committee has been in place for about 17 years, said Jesse Brown, executive director of MCAG. It's made up of 17 people who represent different regions of the county and different interests such as agriculture, water and real estate. Members are approved by the MCAG governing board, which consists of all five county supervisors and one elected official from each of the six incorporated cities in the county. They serve four-year terms, and can't serve more than two terms.

Think Valley...Regional partnership offers great promise for the future...Editorial
http://www.fresnobee.com/274/v-printerfriendly/story/11179.html
The eight counties of the San Joaquin Valley share persistent problems: lower levels of education and income, higher crime rates and poor air quality. For the past year, 26 elected and community leaders from throughout the Valley have met to identify ways to make things better. This group, the California Partnership for the San Joaquin Valley, was created in 2005 by Gov. Arnold Schwarzenegger, a state leader who finally recognized the Valley's problems and potential. Schwarzenegger assigned his top Cabinet people to give the partnership a high priority. Schwarzenegger visited the Valley again as the partnership approved its strategic action proposal. In Fresno, the governor praised the work of the partnership and said it is laying the foundation for improving the region's economy. The five state bond proposals — Propositions 1B, 1C, 1D, 1E and 84 — represent a long-term investment in economic prosperity and in safety. Especially important for the Valley is Proposition 1B, which contains $1 billion to improve Highway 99. The partnership is advancing plans to make the Valley better. There's a sense of momentum; this is no time for us to lose it.

Nov. 3, 2006

Merced Sun-Star
County certain vote will be fair
...Corinne Reilly
http://www.mercedsunstar.com/local/story/12968316p-13620844c.html
Merced County officials said Thursday they're committed to upholding the rights of all local voters, and are working to ensure next week's election moves forward unhindered. The assurances follow the filing of a lawsuit earlier this week in U.S. District Court in Fresno that could halt the certification of Tuesday's election results in Atwater, Livingston, Dos Palos, Gustine and Los Banos until the cities receive a required federal approval that they've apparently failed to obtain. The suit alleges that the cities -- as well as 17 other irrigation, water, resource conservation and community service districts -- have violated the federal Voting Rights Act by failing to obtain approval from the U.S. Justice Department for more than 200 annexations and other land use changes in the county that could affect local election results.

City is growing too fast...RONALD ROACH ...Merced...6th letter...I have watched the population go from 10,000 people to around 71,000 now. I was one of the people dead set against UC Merced being built here. The infrastructure of roads in this town is the same as it has been for 44 years that I know of. I have watched my city services go from $46.56 Oct. 2002 to $71.56 Oct. 2006. Then also now there are articles stating the sewer plant is going to be expanded, at a cost of several million dollars more, which will double our sewer rates. have watched three school bond measures pass and are now on my property tax bill, and now talk of another one to pay for another new high school. In 2005 I witnessed the passage of a half-cent sales tax to pay for emergency services. Merced does not need more money, it needs better money management and to be held accountable for the constant waste in all departments.

Wary of Measure G ads...OTTO RIGAN...Atwater...7th letter...I just saw a portable electric blinking sign in Merced that said vote yes on Measure G. I have never been swamped by so much mail, news ads and lawn signs telling me to vote yes on Measure G. All these ads are done first class. I'm apprehensive of so much money being spent to convince me. It seems that there is more to this than fixing roads. People don't sponsor with so much money and not hope to get something in return. They aren't doing it only for a half-cent tax increase. I think there is more to this than we are told.

Nov. 2, 2006

Merced Sun-Star
Lawsuit targets political jurisdictions
...John Ellis, Fresno Bee
http://dwb.fresnobee.com/local/story/12964194p-13617260c.html
Two Merced County residents have filed a lawsuit that claims multiple political jurisdictions in the county have undertaken more than 200 annexations and other related changes without federal approval, violating the Voting Rights Act...federal lawsuit, filed in U.S. District Court in Fresno, names Merced County, the Local Agency Formation Commission, the cities of Atwater, Dos Palos, Gustine, Livingston and Los Banos, as well as 17 other irrigation, water, resource conservation and community service districts throughout the county. "This is the most massive example of noncompliance that I have ever seen," said Joaquin Avila, an attorney and Seattle University law professor who filed the suit on behalf of Felix Lopez and Elizabeth Ruiz. The suit doesn't seek to stop next week's election in the affected jurisdictions, but instead asks that certification of the results be delayed until approval for the changes is given by federal authorities, Avila said...also seeks class-action status for U.S. citizens of Spanish heritage who are registered to vote and are affected by the changes. A hearing has been scheduled Friday before U.S. District Judge Oliver W. Wanger in which the plaintiffs will seek a temporary restraining order that could delay certification of Tuesday's election in the affected Merced County jurisdictions. Normally, obtaining Justice Department approval - known as a "preclearance" - is a formality. It happens more than 99% of the time, said Loyola Law School professor Richard L. Hasen, an expert in election law... "the failure to get preclearance is a problem in a lot of jurisdictions that are subject to the federal rules." According to the lawsuit, either the U.S. attorney general or the U.S. District Court for the District of Columbia must determine that any changes that affect voting "do not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color or membership in a language minority group. "First approved in 1965, the Voting Rights Act targeted Southern states that had long used poll taxes and literacy tests to impede minority voting. In the 1970s, four California counties - Kings, Merced, Monterey and Yuba - were added. Under the act, the California counties must get federal permission for every change that affects voting. Examples include changes as small as moving a polling location or redrawing voting precincts, or as large as altering county supervisorial districts. A similar Monterey County case made news a month before the state's 2003 gubernatorial recall election...Justice Department quickly authorized the county's proposal... The latest Merced County lawsuit claims its Local Agency Formation Commission and the named jurisdictions have approved 172 annexations, 35 detachments, four formations and one consolidation without federal approval since Nov. 1, 1972, when Merced became a Voting Rights Act county...lawsuit claims Merced County's LAFCO has approved 10 Gustine annexations since November 1972 without getting the required federal approval...21 LAFCO-approved annexations for the Hilmar County Water District, 26 annexations for Los Banos and 39 annexations for Atwater - all lacking federal approval under the Voting Rights Act. Others, such as Dos Palos and Atwater, had not been served but had been alerted to the lawsuit via e-mail.

Nov. 1, 2006

Merced Sun-Star
We don't need Measure G
...Donald G. Bunch...Letters to the editor
http://www.mercedsunstar.com/opinion/story/12960698p-13614021c.html
Measure G is totally unneeded because Proposition1A and 1B will solve the problem with our roads. If the measure was for city and county streets and roads only, then I might support it. A preponderance of the money in Measure G is dedicated to state highways that I pay for each time I buy gasoline. Who benefits from this sales tax measure? Follow the money to builders and developers.

Oct. 30, 2006

Merced Sun-Star
No new taxes
...Randy Henkle, Mariposa...Letters to the editor
http://www.mercedsunstar.com/opinion/story/12954098p-13607996c.html
Less than 20 cents on the dollar reaches a child in school; the other 80 percent goes for administration costs...40 percent of what you make goes for taxes...Exxon-Mobil just ripped you for $10 billion this last quarter...in Merced, to be paying for 25 years for school bonds.
California rakes in about $5 billion a day in fuel tax...we are told in order to fix our roads we need another tax. Fresno...city has some extra money...trying to figure out how to spend it; get the picture? ...they hire a bunch of people to waste that money on administration costs...they will have figured out a new angle to tax you from a new direction... it is time to make our elected officials accountable to us.

Oct. 28, 2006

Merced Sun-Star
More taxes means more power for politicians
...Jim Cardoza
http://www.mercedsunstar.com/opinion/story/12948144p-13602157c.html
Long before bilingual forms and cell phones, services like police, firemen and road maintenance were local government's top priorities. But now, no matter how fast the tax base grows, politicians routinely tell us we must pay more to sustain those vital functions...how can elected officials justify spending a dime on perks, charities and other nonessential expenditures? Pleading with overburdened taxpayers to raise their allowance would be straightforward, but not likely to bear fruit...instead, they choose to wring their hands in seemingly reflective and insightful public concern as they peddle a perception of impending crisis, such as too few cops or otherwise unfixable roadways. When voters bite the hook, the old money is then freed for use throwing around political weight. That political shell game often triumphs because it takes advantage of the widely believed fallacy that taxes are the result of need. The truth is, tax hikes are almost always about beliefs. Just five decades ago, a middle-class American family of four paid about 6 percent of their annual income in taxes of all types. Today, such a family pays well over 40 percent. This state of affairs has resulted from a combination of factors...: the politicians' desire for power, which is the ability to control money; the wasteful nature of bureaucracy, which shares the cancer cell's mission of growth for the sake of growth; and the massive power wielded by public employees unions, of which the California Legislature has long been an identifiable subsidiary. More taxes only encourage politicians to conjure new ways of expanding government. Stripped of sugarcoating, taxes are simply instruments of force used by the state to seize your money... Even less defensible is the enormous amount of resources government fritters away mindlessly within tail-chasing bureaucracies. Whereas private industry looks to streamline costs, bureaucracy's goal is to vaporize every cent in their budgets as a means of getting more next year. Presiding over such a world of waste, it is little wonder politicians view the perks and privileges they shuffle to each other as chump change. More taxes only encourage politicians to conjure new ways of expanding government. Why not insist their focus be limited to providing uncompromised essential services...

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