Federal Judge Oliver Wanger, on whose every word we have hung, fired one last salvo before stepping down from the bench of the Eastern District of California this week.
The occasion was a hearing on the federal government’s request that Wanger hold off on a ruling he made involving efforts to push encroaching salt water back in the Sacramento-San Joaquin Delta to help the threatened delta smelt. The ruling is being appealed by the U.S. Fish and Wildlife Service, the Department of the Interior, and the Justice Department.
Wanger criticized written testimony by fish biologists Frederick V. Feyrer of the U.S. Bureau of Reclamation and Jennifer M. Norris of the USF&WS. He accused Norris of not being honest with the court. “I find her testimony to be that of a zealot. And I’m not overstating the case. I’m not being histrionic. I’m not being dramatic.” He said that the federal government had acted in “bad faith.”
Ren Lohoefener, Regional Director of the Pacific Southwest Region of USF&WS, hastened to assure the region’s employees that he stands 100% behind the scientific integrity and credibility of Dr. Norris and Mr. Feyrer. He said he had reviewed and concurred with the declarations regarding the value of fall habitat water conditions to survival of delta smelt.
On the other side, Congressman Devin Nunes used Wanger’s comments to justify an attack on Interior Secretary Ken Salazar that we can only describe as intemperate.
More heat, little light
We made it clear last week that we think Secretary Salazar got just about everything about the Delta wrong in his remarks at the Commonwealth Club on September 19. (We didn’t comment about his remarks on the Klamath River settlement or the San Joaquin River Restoration Program except to note that it is funny for him to be stumping for a jobs program to build infrastructure while trying address the bad effects of past infrastructure projects.)
We know better than to expect a measured response to anything from Congressman Nunes, but he outdid himself in reacting to Salazar’s remarks.
“Under your leadership,” he wrote, “The Department of Interior has systematically attacked the very infrastructure you praise. Worse, your actions related to the Delta have been exposed as politically motivated and illegal. This scandal, as outlined by the U. S. District Court’s recent admonition of your agency, is damning and should be the subject of Congressional Oversight Hearings.”
He proceeded to quote Judge Wanger at length, then accused the Obama Administration of pursuing a utopian Green Agenda at the expense of working families. He concluded by comparing Salazar to brutal dictators such as Robert Mugabe and Saddam Hussein, “who used water as a weapon against their own populations.”
Nunes will probably never understand the extent to which he has become a pawn for corporations whose real object is not water and jobs for working families but the use of water to create wealth for a few. He doesn’t even realize what an ally he has in an Interior Department that supports the Bay Delta Conservation Plan and is willing to consider increased water deliveries from the overtaxed Delta system.
As for Salazar, he’ll need eyes in the back of his head to keep track of where all the shots are coming from.
A Catch 22 for DWR
The California Water Commission met in an all-day session on September 21, with the agenda dominated by preliminary hearings of evidence for resolutions of necessity for eminent domain. (They’re thinking about thinking about acquiring property.)
The meeting started at 9 a.m., but it was 2:30 before the Commission got around to considering the 28 parcels. Some landowners couldn’t wait. There’s not much point in inviting landowners to make comments if you make it unreasonably inconvenient for them.
DWR staff spent a lot of time explaining the process again, perhaps for the benefit of any landowners who had come to testify. (The Commissioners heard this all last month and had it in writing, too.) DWR claims they have broad statutory authority (referencing legislation and the Water Code) to conduct investigations necessary for improvements to the State Water Project; others argue that conveyance associated with the BDCP is not an approved and financed project yet, so DWR can’t invoke general statutory authorization.
The Governor asked for investigation of four conveyance options, but a map of the proposed exploration area shows drilling sites along what is clearly a through- or under-Delta alignment. They aren’t looking much on the west, and not on the east at all.
Melinda Terry of the North Delta Water Agency acknowledged that BDCP is facing a Catch 22 in trying to collect the data they need to evaluate different alignments and options so that they can get the project approved and financed. But she said that doesn’t change the intent of Water Code Section 11580:
When the department cannot acquire any necessary property by agreement with the owner, the department may exercise the power of eminent domain to acquire the property in the name of the state if the project for which the property is being acquired has been authorized and funds are available therefor.
Conveyance clearly hasn’t been authorized, and there are compelling questions about how it could be paid for if it were authorized.
A pattern of using overkill
Tom Keeling, representing a number of Delta landowners, explained to the commission how the whole process of gathering data got to this point. A judge has told DWR that they can’t go onto people’s property to do geotechnical investigations (mostly test borings) with just a temporary entry permit (TEP) because the investigations they requested are too invasive and take too long. DWR asked for much more access than they needed just to do geotechnical test borings, establishing an atmosphere of distrust that has dominated the process ever since.
The court said DWR has to get easements, and that involves eminent domain.
Last month, the Court of Appeal for the Third Appellate District issued a Stay of Entry Order, which will force a halt to the State’s entries and activities not just for drilling, but also for “environmental” investigations, pending appellate review of the merits. Some landowners are waiting to negotiate with DWR until they learn the outcome of this review.
Dan Kelly of Somach Simmons & Dunn also raised CEQA issues and said that landowners are asking for more specific information on where drilling will occur.
Commissioner Ball thought that condemning property to get borings seemed excessive. He said condemnation should be reserved for actually having to build something. He accused DWR of playing hardball and suggested they find another way to get temporary entry permits.
But from DWR’s perspective this was all about reluctant landowners stonewalling the process. DWR insists it has been trying to negotiate, but some of that negotiation amounted to “Give us this temporary entry, or we’ll sue you.”
There are problems with the timing. DWR admits that they don’t plan to begin these investigations until May of 2012. That’s about the time the BDCP is scheduled to be completed, so they can hardly hope to incorporated the data they collect.
But in fact, DWR staff admitted during the afternoon session that the department has all the geotechnical data it needs for the draft EIR.
What they want to do now is investigations for preliminary engineering studies for a tunnel.
They have requested 6-month windows in both 2012 and 2013, just in case they can’t collect what they want in 2012. But even the EIR is scheduled for completion in 2012. Ball said that DWR’s desire for flexibility in access was creating problems. He also said they have scheduling issues.
A sampling of landowner’s concerns
- One landowner reported receiving four different proposals from DWR, each less invasive than the one before.
- Some people were waiting for funding from the state for an independent appraisal, which is required by law.
- One landowner said that DWR had scheduled a visit to the property then not shown up.
- Landowners suggested there was often adjacent publicly-owned property that could be used for test borings instead.
- One current drilling location is on two water feed lines.
- There is confusion about what happens if DWR finds hazardous materials on the property. One land agent said DWR wouldn’t have to report it. But another document says they are required to report it, which means the landowner will be responsible for clean-up, even if the waste was caused by earlier owners.
- Drilling at toes of levees could cause leakage later.
- DWR emerged from the session looking high-handed, erratic, clumsy, and unreliable in their pursuit of geotechnical data to support the plan for the Delta being pushed by the State Water Contractors. Of course, that is where the money for the investigations is coming from.
What DWR much show
In considering a resolution of necessity, the Commission must find that
The public interest and necessity require the proposed project.
The proposed project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.
The property described in the resolution is necessary for the proposed project.
An offer of compensation has been made to the owner or owners of record, or the offer has not been made because the owner cannot be located with reasonable diligence.
They’ll be back to consider more of these properties next month, and perhaps to issue some resolutions of necessity.
More on ag water measurement
Further delaying discussion of the different properties was a lengthy revisiting of the ag water measurement issue that is still pending from earlier sessions. The big issue here is whether or not CVP contractors are already meeting the measurement requirements. No final decision yet on that.