Scorched Earth: The Drought Stifles Congress

2015-07-24 | CQ Weekly

Persistent drought in the West threatens one of the world's richest agricultural regions and the very future of California -- but so far, the crisis has left lawmakers in the East high and dry for solutions.

Republicans and Democrats agree that the state's current water system is unsustainable and getting worse by the day as farmers cut off from once-abundant river flows drill underground to sap any aquifer that could prevent their land from drying up. The dramatic expansion of groundwater pumping is causing land to sink at a record pace and poses dire long-term consequences for the state's water management.

"This is a humdinger of a drought. We are wrestling with very, very difficult conditions -- the worst drought in 1,200 years," says Timothy Quinn, executive director of the Association of California Water Agencies. "There are pockets of the ag economy that are hurting really bad."

Pressure is mounting for greater action as dwindling water supplies have exposed a multistate system that is unable to meet competing needs. Many are looking to Congress for direction.

Perhaps the most promising solution would be a federal takeover of water distribution throughout the West, turning what is now a jumble of state laws governing allocations into a system of market-based transfers under the interstate commerce clause of the Constitution. Such sweeping action is highly unlikely, though.

For the most part, the debate is not bogged down by partisanship -- in fact, some Democrats are sounding like Republicans on select issues. Members of both parties want to help quench California's thirst by directing more pumping from two massive government water projects and boosting water storage for times of need.

But divisions over states' rights, the environment and the role of agriculture have left many in Washington at odds, and attempts to tackle the problem in previous years have foundered. Still, how Congress deals with drought in California could set a standard for policy reforms across the United States, as droughts affect more regions and science suggests such environmental disruptions could become increasingly common as the Earth's climate warms.

Some members may be reluctant to address the drought because it could force an unwelcome debate on climate change, though California Democratic Sen. Dianne Feinstein hopes that's not the case. "It hasn't with me, let me put it that way, but that doesn't mean it doesn't somewhere else," Feinstein said.

"I really think this is different than climate change," Feinstein said, though she believes personally that it is affecting the drought.

A spate of storms in May and a rare drenching in mid-July have lifted Californians' spirits but haven't changed the long-term outlook.

Both the state and federal governments have taken steps to address the issue. California voters approved a $7.5 billion water bond in 2014 for projects such as recycling, storage and cleanup to reduce reliance on surface water. Last month the Obama administration announced $110 million more in drought aid for Western states, much of which will head to parched California.

Federal agencies have provided hundreds of millions of dollars in assistance to farmers and ranchers since the drought began in 2011 through various measures, including livestock feed and water conservation projects, as well as buying up meat products from farmers strained by expensive feed prices. The Agriculture Department expects to provide $1.2 billion this year in assistance to livestock producers facing grazing losses as a result of the drought, and other federal agencies have spent more than $190 million on drought aid so far in 2015.

"What California has to deal with is what the rest of the nation has to deal with," says Democratic Rep. John Garamendi, a rancher whose district in Northern California includes communities within the Sacramento-San Joaquin Delta, where much of the state draws its drinking water supplies.

"Before the last two months, Texas had a serious drought, as did certain parts of the Northeast and also the Southeast in Florida," Garamendi says. "So there are these periodic droughts that occur throughout this [country], and climate change is likely to make all of it much worse."

Golden lawns and dirty cars are a new normal in California as a four-year drought stretches into the summer. Last month Democratic Gov. Jerry Brown announced historic cuts in water use for farmers who have held allocation rights for more than a century. That followed Brown's January declaration of a state of emergency that required conservation efforts statewide.

In the 114th Congress, advocates and lawmakers alike are hopeful for action, and some think a larger water bill with provisions for both California and other drought-stricken states will seal the deal.

Robert Dillon, a spokesman for Senate Energy and Natural Resources Chairwoman Lisa Murkowski, says the Alaska Republican is working on legislation to tackle problems throughout the West. One sign of that came this month when the committee held a hearing on a bill to fund a water-enhancement project in Washington's Yakima River basin.

Passing a California water bill "is a very heavy lift," says Mario Santoyo, executive director of the California Latino Water Coalition, although he's encouraged by word of multistate legislation. "If there is a piece of legislation that comes out, it's probably going to be based largely on whether there's a bigger, broader package that also provides [other] states the things they need."

The federal government's most direct tie to California's water system comes in the form of the Central Valley Project, a sprawling system of dams, canals and reservoirs that came out of the Great Depression. Water from the project irrigates more than 3 million acres of farmland and provides drinking water to nearly 2 million people, according to the state Department of Water Resources. It works alongside the State Water Project, the largest state-run water and power conveyance system in the country, supplying water for 20 million Californians and more than 600,000 acres of farmland. Some of the water infrastructure that stretches across California conveying water south is jointly owned by the state and federal governments. The federal government also plays a role in determining who gets water from the Colorado River, a shrinking water source that is threatening the supplies of multiple states, including California.

In this session, a compromise would likely need to be reached between authors of two California drought bills, Feinstein and Republican Rep. David Valadao. Each got legislation to increase pumping for residents and farmers passed by their respective chambers in the 113th Congress, but negotiations faltered. Feinstein says she's confident this session: "We'll get it to conference and get it worked out." Feinstein says she plans to introduce legislation soon.

This year, Valadao's bill (HR 2898)easily passed the House on July 16 on a mostly party-line vote over protests from Democrats who said the bill would sideswipe environmental protections and override state water law. The White House threatened to veto it.

Split State

Feinstein says she wants more focus on longer-term priorities for this year's drought bill. "The tremendous challenge of upgrading our water infrastructure will require federal cooperation," Feinstein wrote in a June 6 op-ed in the Los Angeles Times. Her measure last year, co-sponsored by fellow California Democrat Barbara Boxer, would have eased restrictions on pumping to move more water to farms and cities during times of drought. Federal agencies would have been expected to permit as much pumping as much as possible while still adhering to environmental laws, as long as the governor had declared a state of emergency.

"The great north-south fight in California -- the dividing line is not the Tehachapis," says Garamendi, referring to the mountain range historically seen as the state's Mason-Dixon Line. "It's the Sacramento-San Joaquin Delta."

Broadly speaking, officials from above the delta formed by the Sacramento and San Joaquin rivers in Northern California are anxious to keep the water in their area for recreational use and environmental protection, while those to the south expect the Central Valley Project to bring water to the crop-intensive San Joaquin Valley and the metropolitan areas of Southern California.

The regional differences in California have divided Democrats over what to do. Some, like the Central Valley's Jim Costa, the only state Democrat to vote for Valadao's bill, are willing to loosen environmental restrictions while others want stricter protections for the Sacramento-San Joaquin Delta.

The House Natural Resources Committee's July 9 markup of Valadao's bill also left many skeptical California Democrats trumpeting a platform more typical of Republicans: the need for deference to states' rights. Rep. Grace F. Napolitano of Southern California joined many Democrats and the Obama administration in decrying provisions in the bill that would challenge state authority.

"My colleagues across the aisle advocate for smaller government and states' rights. However, this bill would invalidate state laws and create multiple bigger layers of bureaucracy," Napolitano says.

Research from the Congressional Budget Office in 2006 found that water law isn't all state-level: Congress has the authority under the Commerce Clause to apportion waters that cross state lines to serve the national interest. The Colorado River, for instance, drains through seven states before exiting California into Mexico, and each of these entities has an interest in how water is used upstream.

The CBO concluded that a federal policy that promotes the use of markets to transfer water could result in a more flexible system that balances supply and demand at a lower cost to society when conditions change, such as in times of drought. The federal government could help free up more water by promoting the use of water banks, the CBO said, and by clarifying the laws related to the rights of Native American tribes to lease water.

Improving water transfers is a subject that Feinstein says she will address in her bill. The House-passed measure also includes a title to expedite water transfers of Central Valley Project water. But a major contention is that federal action could upend the state's complex system of water rights, parts of which date back to the days of the Gold Rush. More than 100 years of court battles have outlined the ins and outs of water rights in California. Senior water rights in the state are generally accepted as any claim before 1914, the year the state established a permit process for water, and less-potent junior rights are attached to anything after.

In recent years, though, the assurance that used to come with holding senior rights has started to break down, as the drought has led the California State Water Resources Control Board to begin turning back the clock. In June, the agency cut off water from some of the oldest rights holders in the state in an effort to conserve water. The state hadn't taken such action since 1977. The move has triggered several lawsuits from irrigators who hold senior rights.

Garamendi, a cattle rancher whose district lies just north of the Sacramento River, says the federal government "absolutely should not" intervene in the state's water rights system.

"Almost every river in California is within the state, and the water is a state issue. So it's going to be fought out in California," Garamendi says.

But Valadao, a dairy farmer in the southern Central Valley, sees it differently. He says he wants to protect existing water rights, but adds, "Everybody's in the same boat. We all rely on water from other parts of the state, and we acknowledge that they need water, [but] they don't acknowledge that we need water.

"They pick a certain point in time and say, 'From this point on, this isn't as important as ours because ours has been around longer, and that's just too bad,'" Valadao says.

A Big Dig

In the absence of snowmelt and rain, it's a race to the bottom: the California Department of Water Resources estimates that underground resources provide nearly 60 percent of the state's water during a dry year, compared with roughly 40 percent in an average year.

The deeper pumps go, the older the water is that's tapped: The U.S. Geological Survey has estimated that groundwater pumping in certain regions of California has led to the tapping of water that's thousands of years old. Replacing that water will take a long time, and sucking so much water out of groundwater basins can make them less able to recharge when the rain actually comes.

California water scientists are warning of several unintended consequences: Pumping can cause land to sink, dry out wells, worsen water quality, deplete streams and even turn good water salty, according to a 2014 state report on the issue. It found that fewer than half of the state's groundwater basins were monitored at all, and some communities lacked adequate controls over pumping altogether.

Groundwater remained relatively unregulated in California until September 2014, when Brown signed a trio of bills that established a new legal framework for pumping the state's underground resources. But those laws won't take full effect for decades, and scientists worry that the current pace of pumping could permanently damage watersheds and hinder the ability to store water in the future.

Recently, rainy conditions have given some Californians hope; newspapers proclaimed a "Miracle May" when the rainy season reinvigorated the Colorado River. Rare rain in July also made headlines when a bridge over a desert wash in southeastern California crumbled during a rainstorm, blocking traffic between Phoenix and Los Angeles on Interstate 10. Weather forecasters say they see El Nino conditions bringing a rainy autumn.

But "a single rain or even a rainy season isn't going to undo the bigger structural changes we need around water," says Conner Everts, facilitator with the California Environmental Water Caucus, a group of 42 state water organizations.

"We haven't had rain for four years," Everts says. "We get showers for a few days, localized heavily in some places and not others that's caused some random flooding ... but because we don't capture water on an urban level, we've missed an opportunity," Everts says. "It's not going to change the overall picture."

Valadao sees providing more surface water as a way to "reduce the pressure on groundwater." But he doesn't blame farmers for drilling to try to save their livelihoods.

"I don't know if these members of Congress or other folks think that we're just going to walk away from our homes and our families and our farms as if it never happened, and call up the bank and say, 'Sorry man, water's been cut off,'" he says. "You've got to do everything you can to survive. And that's what we're in now, survival mode."

Deputy Interior Secretary Mike Connor acknowledges that "groundwater management, in particular, is the product of the states," but he says the federal government is working to help California and other states better manage the resource.

"The reality is that the Central Valley Project was built to help alleviate the over-pumping of groundwater in the Central Valley; that was one of its original purposes," says Connor, who recently wrote a letter outlining opposition to Valadao's bill.

Connor says groundwater over-pumping can hurt the federal government's Central Valley project, which is why federal agencies are working with states to "more sustainably use both resources."

Connor is skeptical that Congress can do much to direct federal and state agencies to pump more surface water, and he is critical of a provision in Valadao's bill requiring that.

"We don't think that there are a whole lot of new authorities that Congress needs to do in the immediate short term particularly, in an operations standpoint, that is going to provide much more additional water. Or at least provide it in a way that I think maintains protections for other water users and the environment that are necessary," he says.

Fish vs. Farmers

Arguably, the most contentious aspect of California's water problem has to do with the Endangered Species Act and other environmental protections, including several state laws, that are supposed to maintain water levels in streams and rivers for fish to be able to survive and spawn. In the Sacramento-San Joaquin Delta, fish species of concern include the Chinook salmon, green sturgeon, steelhead trout and delta smelt.

Many Republicans object to the way the state and federal laws are being implemented and argue that water is being kept from farmers with little clear benefit.

Valadao says concerns about the economic effects of species protections are increasing in other parts of the country as well. "If today we're having water cutoffs in California and it's having an impact because of some of the laws that are in place today, expect that we're not far away from the same type of rules coming to affect you," he says.

Such language has struck a sour note with many Democrats, who see the situation in opposite terms: Huffman says Valadao's bill "would set a breathtaking standard of environmental disregard, state pre-emption and a stunning indifference to the thousands whose jobs will be threatened by this legislation if enacted." Huffman says provisions diverting flows from rivers and streams would hurt California fisheries.

The Natural Resources Defense Council argues that the impact of environmental protections on water resources is overblown. "Drought, not state and federal environmental laws, [is] the primary cause of low water supplies across California," Doug Obegi, an NRDC staff attorney, wrote in a blog post outlining opposition to the House drought bill.

California water agencies also want Congress to revisit what defines compliance with environmental laws.

"There are certainly ways to be more innovative and creative about how you are implementing the Endangered Species Act," says Quinn, of the California water agencies' group. "Congress does have a potentially important role in that."

Everts, of the California Environmental Water Caucus, says he agrees that the Endangered Species Act needs to be re-evaluated, but "probably for totally different reasons" from those of lawmakers and water agencies critical of the ESA: He thinks that current protections aren't actually enforced.

"I don't think we take away the ESA, I think we actually enforce it, and at the same time provide statewide groundwater management now and integrated water management across the state," Everts argues.

Costa, the Central Valley Democrat who supports Valadao's bill, says the time is ripe for a re-evaluation of whether the state and federal efforts to protect fish have worked.

Although he doesn't think a provision in Valadao's bill that essentially ends efforts to restore Chinook salmon in the San Joaquin River will make it into a final version of the legislation, Costa says Congress will have to revisit the issue because there is growing cynicism about the ESA.

The project Valadao's bill targets is especially contentious because salmon must now be trucked across part of the San Joaquin River that has run dry to spawn in lower reaches that may be too warm for them to survive.

"I don't know, maybe we can breed the salmon to crawl on sand and then that will work," Costa said during the bill's markup.