Westlands/BOR deal clips

 Below, you'll find a few articles on the Westlands/Bureau of Reclamation deal. As is often the case with California water stories in recent years, the best reporting is done by Dan Bacher, who grew out of reporting on good fishing spots in the Delta to become one of the few fact-based voices in the bug swarm of flak hovering above the surface of water issues in this state.
We don't think we overstate the issue by calling this event, occurring during the worst drought in 500 years in California, an example of extreme corruption, serving the financial interests of a few hundred agribusiness enterprises, a vain attempt to preserve the reputation of a corrupt federal institution while removing its accountability and showing that Secretary of Interior Sally Jewell didn't get any closer to the west side of the San Joaquin Valley's habitat than the Washington offices of lobbyists Brownsteil, Hyatt, Farber and Schreck, Westlands Water District's $3-million/year mouthpiece in Washington.
 -- blj




Groups Slam Sweetheart Settlement for Westlands Water District
By: Dan Bacher
September 17, 2015 - Remember the powerful Westlands Water District, the organization that has sued the federal government every summer over the past three years in unsuccessful attempts to stop supplemental releases from Trinity Reservoir to prevent a massive fish kill on the lower Klamath River? 

Well, the same Obama Administration that Westlands sued to block desperately needed flows for salmon and steelhead signed a binding agreement today with the powerful water district, located on the arid and dusty west side of the San Joaquin Valley. 

Conservation groups blasted the settlement for guaranteeing the district vast amounts of Sacramento and Trinity River water to keep irrigating toxic, drainage-impaired soils filled with selenium and other toxic salts. 

In a statement, Gayle Holman of the Westlands Water District announced that the U.S. Department of Justice and Westlands Water District have approved a legal settlement, that, if approved by Congress, would "end a decades-long dispute over the Bureau of Reclamation’s responsibility to provide drainage for the farmland within Westlands." (http://mavensnotebook.com/2015/09/15/this-just-in-westlands-water-distri...

"It provides a fair and equitable solution for Westlands’ landowners who lost the productive use of their land caused by Reclamation’s failure to provide drainage services to those lands, while at the same time providing a cost savings of approximately $3.5 billion to the United States," according to Holman. 

She said the drainage settlement requires Westlands to "assume full responsibility for drainage management within its boundaries." Under the agreement: 

• Westlands will be required to retire a minimum of 100,000 acres of land and to repurpose the non-irrigated lands for "environmentally friendly" uses. 

• Westlands will be relieved of repayment obligation for prior expenditures by the United States for construction of the Central Valley Project (CVP). 

• The Department of the Interior will oversee Westlands’ management of drainage. 

Finally, "The settlement relieves taxpayers of a liability of approximately $3.5 billion dollars and caps water deliveries to the District at seventy-five percent of its contract amount," said Holman.

Holman also claimed, "The Westlands Water District is"the most productive agricultural land in the U.S., generating $3.5 billion in farm-related economic activities and more than one billion dollars’ worth of food and fiber. Westlands’ 700 family-owned farms feed local communities, California and the nation." 

In response, the California Water Impact Network (C-WIN), Food and Water Watch and Restore the Delta issued a joint statement blasting the agreement for settling litigation "over an unfulfilled federal requirement to provide drainage while forgiving Westlands’ debt to U.S. taxpayers with an unconscionable sweetheart deal." 

Rather than relieving the taxpayers of liability, the conservationists said the agreement would in fact increase the federal deficit by $340 million through forgiving Westland’s interest-free repayment obligations to the taxpayers for construction of the federal Central Valley Project. "Westland’s current two-year water contract will be converted to a permanent contract for 890,000 acre-feet of water annually, further draining the Sacramento River watershed and Delta," they said. 

The groups noted that under the agreement, "water would be provided at lower prices, without acreage limits, and with permanent entitlements. These terms will lead to ever-increasing water deficits for California’s communities, economy, and environment." 

“We are outraged that the Obama Administration has sold out California taxpayers and their water,” said Adam Scow, California Director of Food & Water Watch. “This bad deal will allow corporate agribusinesses in Westlands to keep irrigating water-intensive almonds and pistachios on toxic land in the desert, mostly for export to China. We will work to defeat this taxpayer giveaway in Congress.” 

They also criticized the Obama Administration for ignoring previous calls by the U.S. Geological Survey, U.S. Fish and Wildlife Service and many others to retire over 300,000 acres of poisoned lands. Instead, they said the deal will require only 100,000 acres of land retirement - less than Westlands has already retired voluntarily. 

Environmental groups, Indian Tribes and fishing organizations have frequently slammed Westlands and other corporate agribusiness interests for being big beneficiaries of "corporate welfare" through massive subsidies from the federal and state governments. Annual subsidies to Westlands range from $24 million to $110 million a year, the Environmental Working Group (EWG), an independent economic analysis firm, estimated. 

"A better plan, outlined recently by EcoNorthwest, found 300,000 acres of toxic land in the Westlands Water District and three adjacent water districts could be retired at a cost of $580 million to $1 billion," said Scow. "Retiring this land and curbing the water rights associated with it would result in a savings to California of up to 455,000 acre-feet of water. For reference, the City of Los Angeles uses 587,000 acre-feet in a typical year." 

Read the EcoNorthwest Report at: http://www.econw.com/our-work/publications/estimated-costs-to-retire-drainage-impaired-lands-in-the-san-luis-unit 

Scow also said this course of action would "cost significantly less" than Governor Jerry Brown’s plan to build two massive Delta Tunnels to divert water from the Sacramento River for the benefit of Westlands and other corporate agribusiness interests on the west side of the San Joaquin Valley. The state and federal governments recently renamed this plan, formerly the Bay Delta Conservation Plan, the "California Water Fix." Estimates for the real cost of the project range up to $67 billion. 

"Because most of the poisoned lands will remain available for irrigation, the salt and selenium drainage problem will continue, but the U.S. Government will no longer have any role in its management," Scow noted. 

In fact, critics said the current agreement is worse for the environment and taxpayers than earlier agreements proposed under the Bush administration. 

“Unlike the earlier proposals from the Bush Administration, the Obama Administration is making no demands of any kind as to how that drainage is managed, including no monitoring requirements, no performance standards, no ‘drainage plan’ for review or approval by state authorities, etc.," said Tom Stokely from the California Water Impact Network. "The Central Valley Regional Water Quality Control Board does not require any monitoring for selenium discharges to groundwater, so desert growers in Westlands have been given a free pass to expand the pollution in the aquifers of the Western San Joaquin Valley in perpetuity with cheap water that is desperately needed by people in the source watershed.” 

Stokely said the "disastrous consequences" of industrial-scale cultivation of seleniferous lands became obvious in 1983, when thousands of migratory waterfowl, including ducks and geese, were deformed or killed outright at Kesterson Wildlife Refuge due to deliveries of toxic drain water from Westlands Water District corporate farms. That huge environmental scandal was exposed by Felix Smith, a brave U.S. Fish and Wildlife Service biologist at the time who now serves on the Board of the Save the American River Association (SARA). 

“The diversion of water from the Delta for Westlands Water District has significantly contributed to the destruction of the Delta’s fisheries and water quality for agriculture,” said Barbara Barrigan-Parrilla, Executive Director of Restore the Delta. “Leaving this land in production will ensure perpetual taxpayer subsidy to agriculture’s wealthiest 1% and continued environmental destruction of fish, wildlife, water quality and air quality from desertification of salty lands. The Obama Administration is making a terrible mistake that will haunt us for generations to come."

Congressman Jerry McNerney (CA-09) also slammed the drainage settlement between Westlands and the federal government that was approved today, calling it a "sweetheart deal." (https://mcnerney.house.gov/media-center/press-releases/rep-mcnerney-issu...

“This settlement between Westlands Water District and the Department of the Interior is nothing short of alarming," said McNerney. It’s a ‘sweetheart deal’ negotiated without transparency – resulting in an outrageous windfall for Westlands regardless of how much affected land is ultimately retired. The settlement forgives Westlands’ massive $350 million debt owed to the government and taxpayers while giving them an advantageous, no-need-to-review contract that could improve the water deliveries they receive from the San Joaquin-Sacramento Delta and further devastate the Delta’s fragile ecosystem." 

Since the drainage agreement between Westlands and the federal government must be approved by Congress, you can expect a big battle by fishing groups, Indian Tribes and environmental organizations and their political allies to block the approval of this settlement. 

Westlands has acquired a reputation among public trust advocates as the "Darth Vader" of California water politics because of the water district's frequent attacks on efforts to save and restore salmon, steelhead, Delta smelt and other imperiled fish populations. 

The Hoopa Valley Tribe, Yurok Tribe, Pacific Coast Federation of Fisherman's Associations, Institute for Fisheries Resources and Department of Interior won a legal victory on August 26 when a federal judge denied a request by Westlands and the San Luis Delta Mendota Water Authority for a temporary restraining order and preliminary injunction against the higher supplemental flows from Trinity Reservoir released in August and September to stop a fish kill on the lower Klamath River. (https://intercontinentalcry.org/judge-sides-with-hoopa-valley-and-yurok-...

For more information on the history of Westlands Water District, please read Lloyd Carter’s superb Golden Gate University Environmental Law Journal article, "Reaping Riches in a Wretched Region: Subsidized Industrial Farming and Its Link to Perpetual Poverty," at: http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1033&conte...

Background on the Groups: 

The California Water Impact Network (C-WIN, online at http://www.c-win.org) promotes the just and environmentally sustainable use of California's water, including instream flows and groundwater reserves, through research, planning, media outreach, and litigation. http://www.c-win.org 

Restore the Delta is a 20,000-member grassroots organization committed to making the Sacramento-San Joaquin Delta fishable, swimmable, drinkable, and farmable to benefit all of California. Restore the Delta's mission is to save and restore the San Francisco Bay-Delta estuary for our children and future generations. http://www.restorethedelta.org 

Food & Water Watch works to ensure the food and water we consume is safe, accessible and sustainable. So we can all enjoy and trust in what we eat and drink, we help people take charge of where their food comes from, keep clean, affordable, public tap water flowing freely to our homes, protect the environmental quality of oceans, force government to do its job protecting citizens, and educate about the importance of keeping shared resources under public control. http://www.foodandwaterwatch.org
Sacramento Bee
California farm drainage deal faces Capitol Hill currents

Settlement relieves federal government of irrigation drainage obligation
Congressional approval required for deal to take effect

Agreement gives Congress until January 2017 to act
Michael Doyle
A Congress that has stumbled over a California water bill amid record drought now faces a challenging new fight over irrigation drainage.
But this time, some of the state’s most politically powerful farmers have the Obama administration explicitly on their side. Together, they will be seeking approval of a far-reaching settlement that satisfies the Justice Department and Westlands Water District but alarms critics.
“I think after years of frustration, we’ve finally got something done,” Rep. Jim Costa, D-Calif., said in an interview Wednesday. “It’s a compromise and, like any, there was give and take on both sides.”
In a federal court filing Wednesday, the Justice Department provided both details and a roadmap for the irrigation drainage settlement formally agreed to by federal and Westlands officials the day before.
Years in the making, the settlement relieves the federal government of its obligation to provide drainage for Westlands’ farms. Federal officials now peg the constantly escalating overall cost of that drainage at upward of $3.5 billion.
The 600,000-acre Westlands district will assume responsibility for providing the drainage that takes away tainted irrigation water.
.Bureau of Reclamation Commissioner Estevan López
In turn, Westlands will be forgiven the rest of its capital cost debt owed for construction of Central Valley Project irrigation facilities. Interior Department officials now estimate the debt to be forgiven at upward of $375 million.
Myriad other provisions are included in the 10-page settlement plus attachments made public Wednesday, including Westlands agreeing to pay Michael Etchegoinberry and other farmers who filed a class-action lawsuit against the Interior Department. The farmers argued the failure to provide drainage so damaged the land that it amounted to a government taking.
Westlands also agreed to retire at least 100,000 acres of farmland, although the district can count toward the total some land already taken out of production. Westlands would gain ownership of the federal pipes, canals and pumping plants serving the district.
Congress should pass the necessary legislation by January 2017, according to the settlement. If it doesn’t, either the government or Westlands can nullify the deal unless they agree to an extension. As part of the legal package submitted Wednesday, officials included a six-page draft of the proposed bill.
In a statement, Bureau of Reclamation Commissioner Estevan López said the settlement avoids a “court-imposed obligation (that) would jeopardize important investments in conservation, environmental restoration and water infrastructure.”
The Capitol Hill undercurrents, though, could get tricky.
“The best thing that could happen would be for us to take the time to understand the implications of this,” Rep. John Garamendi, D-Calif., said in an interview Wednesday, “but my guess is that they will try to ram it into must-pass legislation, and that would be a mistake.”
Another lawmaker who represents part of the Sacramento-San Joaquin Delta, Rep. Jerry McNerney, D-Calif., called the settlement an “outrageous windfall for Westlands” and vowed to “ask the tough questions necessary when California's largest and very profitable water district is absolved of its obligations at the expense of taxpayers and the environment."
Westlands will enter the arena with certain advantages, including a Washington, D.C. advance team that includes, records show, four separate lobbying firms and several former members of Congress.
A potentially crucial player, Democratic Sen. Dianne Feinstein, has not yet publicly committed herself, though she noted Wednesday that the drainage issue “has lingered for decades and needs to be resolved.”
“From what I’ve seen, the settlement agreed to by Westlands and the Department of the Interior is very complex and my staff and I are reviewing all the details and ramifications,” Feinstein said in a statement.
Feinstein’s Democratic colleague, Sen. Barbar Boxer, is also still reviewing the proposal, Boxer’s spokesman Zachary Coile said.
In the House, Costa anticipates introducing the settlement bill along with Rep. David Valadao, R-Calif.
Any action might take a while.
After an 18-year legal battle, negotiators in September 2006 reached a deal to restore salmon to the San Joaquin River below Friant Dam. Legislation implementing the settlement was first introduced in December 2007.
In March 2009, the San Joaquin River legislation finally reached the White House as part of a larger package.
Since then, the San Joaquin River restoration costs have risen and the performance fallen short of what lawmakers had envisioned.
McClatchy DC
Westlands Water District’s $1 billion claim against U.S. rejected
A federal court has quietly dismissed a $1 billion claim by the well-known Westlands Water District, leaving unresolved the long-standing problem of coping with irrigation drainage in California’s San Joaquin Valley.
By Michael Doyle - McClatchy Newspapers
A federal court has quietly dismissed a $1 billion claim by the well-known Westlands Water District, leaving unresolved the long-standing problem of coping with irrigation drainage in California’s San Joaquin Valley.
Wading carefully into one of the West’s muddiest controversies, a U.S. Court of Federal Claims judge rejected arguments by Westlands, the nation’s largest water district, that the federal government should pay for failing to build a drainage system that carries away used irrigation water. The failure has vexed farmers and officials alike for several decades and incited multiple lawsuits.
In her 56-page ruling, U.S. Court of Federal Claims Judge Emily C. Hewitt largely avoided the immense political, agricultural and environmental consequences. Instead, Hewitt reasoned that Westlands’ lawsuit, filed last February, failed for a combination of technical legal reasons, including her court’s limited jurisdiction and the expiration of a six-year statute of limitation.
“All the events that would fix the liability of the government with regard to any breach of the (contracts) . . . would have occurred before 2006, outside the limitations period,” Hewitt said at one point.
Moreover, Hewitt, in her decision issued Jan. 15, specifically rejected several of Westlands’ claims that the federal government was legally obligated under multiple contracts dating to the 1960s to complete a drainage system.
“Because (Westlands) failed to show that drainage service was a bargained-for benefit of any of these contracts, (Westlands) has not shown that drainage service is a ‘fruit’ of any of the contracts,” she reasoned.
Craig Manson, the general counsel for Westlands, said Tuesday that the water district was evaluating its future options and stressed that it “will press” the government to provide drainage. A separate lawsuit filed by individual Westlands farmers, relying on different legal arguments, is still pending before the claims court.
“We still believe we have a viable claim against the government for failure to provide drainage service,” Manson said in a telephone interview.
Serving some 600,000 acres, Westlands is also one of the most politically potent water districts. Manson is a former top Interior Department official, and the district hired the Denver-based law firm Brownstein Hyatt Farber Schreck to file the claims court lawsuit. The Washington court handles cases that involve financial claims against the federal government.
From the start, Westlands’ lawyers underscored the high stakes.
“In the end, this is the never-ending story of the United States government simply running away from a mammoth problem it, itself, created by failing to perform its statutory and contractual obligations,” attorney Lawrence W. Treece wrote in the water district’s initial brief.
Congress set the trains in motion in 1960 when it authorized the San Luis Unit of the vast Central Valley Project network of dams and canals. As part of the overall project to deliver irrigation water, lawmakers included a drainage system to dispose of the saline water that accumulates beneath irrigated land.
At one point, federal officials directed the drainage to Kesterson Reservoir in western Merced County in California’s agriculturally rich Central Valley. Because the planned drain was never completed to the Sacramento-San Joaquin Delta, the toxic water piled up at Kesterson, poisoning birds and other wildlife until the Interior Department shut it down in the mid-1980s. Subsequent efforts to find a lasting solution have failed.
As an alternative to its $1 billion claim, Westlands asked that its future water-contract payments be reduced to account for the government’s contractual failures.
Hewitt disputed Westlands’ contention that the language of several contracts dating to 1963 constitutes a legal obligation of the federal government to construct a drainage system.
“At most it represents defendant’s prediction or intent that the interceptor drain will provide service to Westlands in the future,” Hewitt said of the language in one contract, adding that “government representations are not binding contractual obligations unless stated as an undertaking rather than an intention.”
Complicating the picture, a different federal court previously ruled that the federal government had “a duty to provide drainage service” to Westlands. This earlier ruling, though, focused on a “statutory” duty imposed by the 1960 law authorizing the San Luis Unit, and it’s different from a contractual duty. This earlier ruling, Hewitt added, also didn’t specify what kind of drainage must be provided.

Office of Congressman John Garamendi

Northern California Congressmembers Criticize Agreement Between Interior Department and Westlands Water District

Agreement, negotiated in secret, lacks financial and environmental accountability
WASHINGTON, DC, Sept. 17, 2015 - Today, a group of four Members of Congress from Northern California sharply criticized the recent agreement negotiated between the Department of the Interior and the Westlands Water District in California’s Central Valley. The agreement, negotiated in secret with little public input or accountability, was designed to settle litigation over the need to provide drainage to selenium-impaired farmland, but is deeply flawed. It would guarantee Westlands a permanent water contract with no ongoing environmental review, potentially leave taxpayers on the hook for hundreds of millions of dollars, and provide inadequate oversight over the drainage issue the agreement was designed to settle. 

“I am deeply concerned by the secrecy and lack of accountability in this agreement,” said Congressman John Garamendi of California’s 3rd District. “This agreement will have a significant environmental and financial impact on California’s economy and environment. It forgives hundreds of millions of dollars that the district owes the government, and it might give Westlands even greater access to our water supply. But it will end up rammed through Congress with hardly any time for public input or scrutiny.”

“In short, this agreement is a bad deal,” said Congressman Mike Thompson (D-CA). “This deal, negotiated in secret, gives Westlands a permanent water contract, among other concessions, which precludes any further environmental review or contract renewals. In return, Westlands will retire 100,000 acres of farmland, but that still leaves nearly 300,000 acres of impaired lands open to irrigation, opening the door to further pollution of our rivers and streams. The agreement includes no stipulations for oversight of drainage operations and no metrics by which to measure Westland’s compliance. While this brings an end to a long-standing dispute that had to be resolved, the concessions of this agreement go too far, placing our communities, water supply, and environment at risk.”

“I am troubled that the settlement does not fully address underlying drainage concerns, does not retire enough of the drainage impaired-lands, and may result in reduced water allocations for other Central Valley Project Contractors, including residents of my Congressional District. The settlement deserves a thoughtful and thorough evaluation before it is voted on in the House of Representatives,” said Congressman Mark DeSaulnier (D-CA).

“The Department of Interior settlement agreement with the Westlands Water District is a short-term resolution of the legal problems between the parties,” said Congresswoman Doris Matsui (D-CA). In the long run, however, the settlement will allow Westlands to keep farming the same land with the same drainage problems, but now their water rights are in perpetuity. How does this help solve California’s water problems? Simply put, it doesn’t, it just perpetuates them. The Department of Interior can do better by holding federal water users accountable.”

Representatives Jared Huffman (D-CA) and Jerry McNerney (D-CA) have also expressed their concerns about the agreement in separate statements. Congress must still approve the agreement, but a vote has not yet been scheduled.