Local Farmers Challenge Authority of Unelected Bureaucrats.
By Natalie Willis, Reporter, Valley Ag Voice
While the affairs of California’s governance should not hinder the work of those feeding the nation, the Central Valley’s agriculture sector finds itself increasingly entangled in politics — with both elected officials and unelected regulators holding substantial influence over the industry.
Regulators not subject to direct electoral accountability, such as the U.S. Fish and Wildlife Service and Bureau of Reclamation, play a significant role in shaping and enforcing policies that impact agriculture. Thus, to prevent a monopoly on the rule-making process, elected officials are tasked to engage with state and federal regulatory bodies.
UNELECTED OVERSIGHT
In September, a field hearing in Santa Nella hosted by Chairman Cliff Bentz and Congressman John Duarte of the House Subcommittee on Water, Wildlife and Fisheries, examined California’s water supply, the challenges faced through federal regulations, and its connection to the nation’s food security.
Representatives Vince Fong, Doug LaMalfa, Tom McClintock, and David Valadao also joined the hearing titled “Water Abundance: Opportunities and Challenges in California.” Testimonies from six key water experts and stakeholders were featured, including Friant Water Authority CEO Jason Phillips, Westlands Water District General Manager Allison Febbo, environmental attorney Ronda Lucas, Harris Farms Executive Vice President William Bourdeau, South Delta Water Agency Manager John Herrick, and Turlock Irrigation District Director of External Affairs Josh Weimer.
Primary topics addressed environmentalist agendas, and the overregulation of the industry imposed by unelected officials. As such, the Bureau of Reclamation, the U.S. Fish and Wildlife Service, and the National Oceanic and Atmospheric Administration were also invited. The Biden-Harris administration chose not to participate, Bentz explained.
In addressing water scarcity, Duarte explained that the largest precipitation bank in the world — the Pacific Ocean — is right off the Sierra Nevada Mountains, the largest watershed in the most fertile valley. However, the mismanagement of these resources to drive a fish outcome under the Endangered Species Act has led to a thermal dust bowl with no tangible evidence of species protection.
“We cannot count an additional salmon, we cannot count an additional smelt, we cannot count any recovery of the target species in the Delta or rivers of California, but nonetheless, we can count up parched, previously irrigated landscapes in our urban areas, we can count up parched farming landscapes throughout the valley here, we can count up the lack of water being delivered to our wetland estuaries and our true biodiversity opportunities here in California across the board,” Duarte said. “And we can look at our subsiding soils, our subsiding freeways, infrastructures, and canals because we are over-drafting our aquifers. All to not recover the stated species.”
During his testimony, Phillips of the Friant Kern Canal explained that unelected officials began restricting how water is managed in California starting in the early 1900s. Since then, regulatory decisions have taken water away from farms and communities in increasing quantities with no discernible change to help in the decline of species populations.
“I want you to consider this: unelected officials at regulatory agencies are delegated the responsibility for being the final decision makers on one of the most significant public policy issues we face in the state of California and how to best allocate the state’s limited water resources,” Phillips said.
He referenced back to the 2019 biological opinion under the Trump administration which would have improved the reliability of the Central Valley Project. However, the 2019 BiOps was litigated by environmentalist groups as well as the state of California.
“Instead of defending the work that was done, one of the first acts of the current federal administration in 2021 was to scrap the work and start over,” Phillips said. “The new biological opinion will continue the trend of the past several decades and take an overly conservative approach to ESA compliance and further reduce the ability to deliver contract water.”
FALL X2
During the hearing, Congressman Vince Fong addressed the six expert witnesses, voicing his concerns over the Fall X2 Action being proposed by the National Oceanic and Atmospheric Administration, which intends to improve the fall habitat for delta smelt by increasing Delta outflow during the fall if the preceding water year is wetter than normal.
Fong explained this action “has the potential to create even more stringent roadblocks for agricultural and municipal water users.” He also questioned the effect that the Fall X2 proposal will have on irrigation districts and if there is a better way to manage flows without sacrificing water allocations.
Fall X2 — X2 being the distance where the tidal inundation comes from the Golden Gate Bridge into the Delta — takes the savings stored during wet years and sends it out to the ocean, Phillips explained.
“And in this particular time, there’s been an abundant amount of science that has shown that this Fall X2… is not necessary. In fact, the scientists even agree, but now the regulators are tying themselves in knots on, ‘Okay, how do we undo it?’” Phillips said. “And 10,000- to 15,000-acre feet a day right now are leaving our system, our storage reservoirs out to the ocean. We could use it next year, but for the fact that they are not able yet, they’re trying, to figure out how to put a stop to this regulation that they imposed, and Congress never had a say in ever.”
According to a technical report from the Center for California Water Resources Policy and Management, Fall X2 was introduced to benefit delta smelt by increasing water outflow through the Sacramento-San Joaquin Delta during wet years— specifically September and October — based on the USFWS 2008 BiOps as an alternative to enhance delta smelt habitats by moving the low-salinity zone further west.
However, in a review of the Fall X2 Action, the 2022 report found that while the original studies suggested a potential benefit to delta smelt, these studies had flaws, such as not considering the impact of spring flows. Additionally, more recent studies have either contradicted the benefits of the Fall X2 Action or found it ineffective.
“We also evaluated seven hypotheses – that is, justifications for the management action – using publicly available data and found no evidence of benefits of a Fall X2 Action to delta smelt growth, abundance, survival, recruitment, food supply, or habitat area, nor evidence of benefits to the quality of delta smelt habitat,” the report explained. “The weight of evidence, presented here, does not support a Fall X2 Action.”
Allison Febbo of Westlands Water District further explained that the cost of the action could amount to up to 300,000 acre-feet if it’s implemented and there is a dry Fall.
“To me, it’s about being able to adaptively manage, but not only that, to show that the regulatory agencies are willing to adaptively manage, we are looking at the re-consultation again and we have the fishery agencies and the project operating agencies saying that they will adaptively manage,” Febbo said. “And this is a perfect example when we actually have the science that is saying this may not be beneficial, and so this is the time where we need to come together and we need to decide and have the courage to be able to say, we’re going to try something different and we’re going to adaptively manage and we’re going to learn from this.”
Environmental Attorney Ronda Lucas echoed her fellow witnesses’ stance on Fall X2, explaining that the fishery agency’s proposal is not based on science.
“So, when you layer the science on top of the actual real-world situation in the Delta where the channels are impassable, it is an absolute waste of water and there’s no way we can achieve the objective,” Lucas said. “Let’s hold the unelected bureaucrats to the same standards that we the farmers and the agencies are held to when it comes to science, when it comes to hypotheses, and when it comes to results. And it would fail miserably and never get out of the gate.”
TAKING BACK POWER
According to Congressman McClintock, in the last decade, California has endured both historic droughts and record rainfall. Still, there is not adequate capacity to store excess water from wet years, resulting in severe shortages during dry periods.
“Mr. Phillips, you said this was a simple choice between scarcity and abundance. Who’s responsible for that choice, and what do we do about it?” McClintock said.
Phillips placed the responsibility squarely on elected officials.
“And the reason I say that is because — a sentence that was in my testimony that I wanted you to consider very carefully — that unelected officials at regulatory agencies have been delegated the responsibility for being the final decision makers on how we allocate water resources. So, they are continuing to do that,” Phillips said. “They are the ones building reservoirs by taking our existing ones like Shasta and building from the bottom up, dedicating all of the space to their purposes, and we can no longer use it for the existing purposes.”
To watch the hearing, visit the House Committee on Natural Resources website.
