Felix Smith, retired US Fish & Wildlife biologist who was one of the original whistleblowers on the Kesterson Wildlife Refuge selenium catastrophe for migrating birds in Merced County,1 may fail to educate the Trumpologues who run the Department of the Interior, but we learned much from this letter. -- blj
Felix E. Smith
August 23 , 2018
Mr. Ryan Zinke - Secretary
Department of the Interior
1849 ”C” Street, NW
Washington, DC 20240
Dear Honorable Secretary:
Your name and the power of the Department of the Interior is spread over the pages of news papers this week with your demand that more northern California water be shipped / pumped by the Bureau of Reclamation to irrigate the desert lands of the San Joaquin Valley.
Apparently when one goes to Washington as a political appointee, one forgets that the States own their water in the name of the people. California, like other states, holds that water as a public trust to serve the public and trust interests, uses and values for today's and future generations. The Chinook salmon, steelhead, other fishes and wildlife resources of those waters also are held as a public trust.
Can the Department of the Interior’s word be trusted in this day and age of President Trump?
Many years ago Secretary of the Interior Julius Krug stated on Oct 12, 1948: “Let me state, clearly and finally, the Interior Department is fully and completely committed to the policy that no water which is needed in the Sacramento Valley will be sent out of it.” He then added, “There is no intent on the part of the Bureau of Reclamation to ever divert from the Sacramento Valley a single acre-foot of water that might be used in the Valley now or later.” (CVP Authorizing Documents, 1956 at pg. 694.) I guess under President Trump its is “to hell with past commitments” “do as I say”, for those old laws and policies have no place in a Trump run Administration.
California acting through its State Water Resources Control Board is responding to the decision in the lawsuit -U.S. v. State Water Resources Control Board (227 Cal Rptr 161 -1986, also called Racanelli) to develop instream flow regimens for several rivers of the central Valley to improve aquatic ecosystems for associated resources, uses and values. Judge Racanelli stated the State Board should consider the impacts of all upstream diversions and uses of water when making water allocation decisions. He also stated that when making water allocation decisions, it is essential that the State Board take a global perspective in carrying out its water quality planning obligations. This includes the Central Valley watershed and any watershed that provides water for use in the Central Valley. Judge Recanelli had the decision from the lawsuit of National Audubon Society v. Superior Court (33 Cal.3d 419, 189 Cal Rptr 346; 658 p2d 709, cert. denied 464 U.S. 977-1983 – called Audubon) which was rendered just 3 years earlier. Judge Racanelli was aware that the available water supply is determined largely by natural forces. However the actual water available to the Central Valley Project, the State Water Project as well as the Delta farmers largely depends upon the quantity of water not diverted by upstream users and uses
California Water Code Sections from the Watershed of Origin Protection Act, specifically Section 11128, states, “The limitations prescribed in Section 11460 and 11463 shall also apply to any agency of the State or Federal Government which shall undertake the construction or operation of the project, or any unit thereof … .” The Water Code Sections clearly operate as a limit on the water that can be transferred or exported out of the basin of origin by the state and federal operators of the Central Valley Project and the State Water Project.
A review of State and Federal reports, public statements, documents, etc, reveals that they are replete with promises to protect the needs of the “Area of Origin”. One need was to protect the fisheries and associated economies in the Sacramento Valley as well as along the central and northern California coast. These documents refer to “surplus water” or “excess water” that is no longer needed to meet the needs of trust resources and values of the Sacramento Valley and to repel salt water from entering the Delta, would be exported to the Western San Joaquin Valley. Department of the Interior officials publicly endorsed this policy many times. For example, on Feb. 17,1945, the Joint Committee on Rivers and Flood Control of the California State Legislature posed to the Bureau’s representative, the question: "What is your policy in connection with the amount of water that can be diverted from one watershed to another in proposed diversions?" In stating the Bureau's policy, Acting Regional Director R.S. Calland, quoted Section 11460 of the State Water Code, which is sometimes referred to as the County of Origin Act, and then said:
"As viewed by the Bureau, it is the intent of this statute that no water shall be diverted from any watershed which is or will be needed for beneficial uses within that watershed. The Bureau of Reclamation, in its studies for water-resources development in the Central Valley, consistently has given full recognition to the policy expressed in this statute by the legislature and the people. The Bureau has attempted to estimate in these studies, and will continue to do so in future studies, what the present and future needs of each watershed will be. The Bureau will not divert from any watershed any water, which is needed to satisfy the existing or potential needs within that watershed. For example, no water will be diverted which will be needed for the full development of all of the irrigable lands within the watershed, nor would there be water needed for municipal and industrial purposes or future maintenance of fish and wildlife resources." (CVP Authorizing Documents, 1956 at pg. 804 and 805.)
On October 12, 1948 Secretary of the Interior Julius Krug stated: “Let me state, clearly and finally, the Interior Department is fully and completely committed to the policy that no water which is needed in the Sacramento Valley will be sent out of it.” He then added, “There is no intent on the part of the Bureau of Reclamation to ever divert from the Sacramento Valley a single acre-foot of water that might be used in the Valley now or later.” (CVP Authorizing Documents, 1956 at pg. 694.)
Fundamental restrictions on federal water development projects are discussed in the Reclamation Act of June 17, 1902, Section 8 states among other things:
“That nothing in this Act shall …interfere with the laws of any state; ...and shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof: 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. (Emphasis added.)
The various units of the CVP are integrated and coordinated from an operational and financial standpoint for the fullest and most beneficial uses of the land and water resources.
It is recognized that the runs of Chinook salmon have decreased by 80 to 90 percent with some runs now either commercially extinct such as the spring and winter runs in the Sacramento Valley, or biologically extinct such as the spring run of the San Joaquin Valley. There wasn’t a winter run in the SJV. The commercial salmon fishermen are small businesses. Their respective communities have taken a very hard hit economically from the Central California coast to northern California into Oregon. The numbers of salmon fishing boats are down by up to 75 to 80 percent since the 1950s and 1960s while Valley farmers have planted more and more acres to almonds without having an assured water supply. The West side of the San Joaquin Valley with more water could easily bring back the selenium poisoned habitat that devastated the area’s waterfowl and shore birds populations.
With water development on the San Joaquin, Stanislaus, Tuolumne and Merced River there was little real effort to mitigate the impacts to Chinook salmon or Steelhead trout populations of those systems. The small boat fisherman, the economies of coastal communities and the health of the aquatic systems were left out of the cost / benefit equation. It took years of lawsuits to get very modest flows in the San Joaquin River. There are no flows from the Kings and Kern Rivers to the Delta except during very heavy run off years. On the Trinity River it took private money and many years of winning lawsuits against the Bureau of Reclamation to restore stream flows to the Trinity River. The operation of a hatchery helped recover the Steelhead trout, Chinook and Coho salmon resources to near pre-project numbers. Right now about 50 percent of the Trinity River water is to sustain the River’s salmon and steelhead resources and area of origin needs and values, while the other 50 percent is exported to the Central Valley for generation of hydro- power and for irrigation purposes.
The Bureau of Reclamation’s action at Shasta Dam and Reservoir on the upper Sacramento River and at Folsom Dam and Reservoir on the American River are poor examples of managing a river to help restore or recover Chinook salmon and steelhead resources and their respective runs. On the American River, the people have waited at least 25 years to get some reasonable stream flow and water temperature control at Folsom Dam to help sustain these fisheries. And they are still waiting. Reclamation has made some promises, while stonewalling the efforts.
The “Area of Origin”-“Watershed Protection” laws coupled with the Public Trust Doctrine, Fish and Game Code Section 5937, Federal and California Endangered Species Acts, and California’s Environmental Quality Act provide the foundation and tools to protect California’s Chinook and Silver salmon, Steelhead and other fishes found in Central and Northern California rivers and streams against the raids by out of the area water purveyors and corporate agriculture.
This is a people thing. The harvest of a high quality food source from the ocean or our rivers such as Chinook salmon and steelhead serves as many if not more human and small business economies and opportunities, as does the harvest and consumption of land grown crops, and does so without poisoning the land or polluting the aquatic environment.
The State Water Resources Control Board, with support of the National Audubon Society and Racanelli decisions and the Mono Lake Basin Water Right Decision 1631, has laid the foundation for establishing flows to protect public trust resources such as fish and ecological values of the rivers and streams of the Central Valley Basin and the waters of the Bay-Delta Estuary.
The people are ready to go to court if the State Board and the CVP managers are not responsive to the limitation imposed by the Watershed of Origin Protection Act and Water Code 11460 and 11463, and the purpose and intent of Fish and Game Code Section 5937.
If the State Board fails to protect the waters and resources of “Area of Origin” watersheds, not just for human uses and values, but for trust resources, uses, and ecological values: if the State Board fails to protect and safeguard our salmon and steelhead and other fishes and fisheries; if the Bureau of Reclamation fails to meet its fish mitigation, recovery and ecosystem protection obligations, the government fails its public trust responsibilities to the future generations of everyone’s children. Our grandchildren’s resources, opportunities and values are at stake. The Department of the Interior must be mindful of this. Therefore the Department of the Interior and the Bureau of Reclamation have an obligation to first protect public trust resources, uses and values of rivers and streams of California impacted by Bureau of Reclamation facilities and operations before any more water from Northern and Central California is exported from the Delta.
Felix E. Smith
cc: Interested parties
1. Kosloff, "Tragedy at Kesterson Reservoir: Death of a Wildlife Refuge Illustrates Failings of Water Law," Environmental Law Reporter, 1985