March 25, 2020

To Push California Forward, Pull Back from the Brink

Once again, the State of California has launched a legal assault against the federal government, this time over the latter’s modernization of the failed regulatory policies that have, since 2008, hobbled the state’s water storage and conveyance systems by basing diversion decisions in the Delta on static and scientifically-flawed rules. Those rules have failed the very fish species they were purportedly created to help while throttling back surface water deliveries to much of the San Joaquin Valley and Southern California.

For years, actually going back to the final months of the Obama Administration, federal agencies have been reworking the “biological opinions” that set regulatory policy in the Sacramento-San Joaquin Delta. Their principle goal is actually surprisingly simple: Require real-time monitoring to account for changing data on fish locations and prevalence, and further to maximize water capture, storage and delivery in times of excessive precipitation and runoff.

Behind the scenes, as the federal agencies reworked these rules, California officials were engaged alongside in exactly the spirit of partnership we all hope for, especially in water policy.

During virtually the same period, two California governors—Jerry Brown and Gavin Newsom—committed to an alternative approach that would set aside the harsh and impractical State Water Board proposal to force at least 40 percent of the flows of the San Joaquin River tributaries to flow unimpeded through the Delta and out to the sea. The “voluntary settlement agreement” process initiated by Brown and embraced emphatically by Newsom (his removal of Felicia Marcus as chair of the State Water Board was widely attributed to her resistance to this pathway) has signaled a new commitment by the state’s elected executive and his appointees to balance in water policy.

So it is an understatement to say that many of us grimaced when, on February 20, one day after President Trump signed the new “Record of Decision” on the revised biological opinions, the Newsom Administration announced a lawsuit against the new policy.

Everyone decries the seemingly endless California “water wars” that have dominated water policy for decades, and this latest flare-up might signal the opening of another major new front. Let’s hope not; usually, water users—especially in agriculture—don’t fare well in the aftermath.

Call me a hopeless optimist, but here goes: I am not yet convinced that we are stuck in another losing phase of water conflict. In fact, I think we may be witnessing a new approach by Governor Newsom rejecting false binary choices that require siding with environmental groups or water users, irrespective of good science, economic consequences and social impacts.

Before taking the oath of office, Governor-elect Newsom joined with Brown to urge the State Water Board to pursue voluntary settlement agreements in place of the draconian approach noted above. Environmental groups, like Natural Resources Defense Council (NRDC), loudly objected and warned Newsom to reverse course. Then Newsom dismissed Marcus from the State Water Board, in direct contravention of the demands of NRDC and their allies. Perhaps most encouraging, Newsom then vetoed SB 1 (Atkins), a Trump Resistance bill that would roll back regulatory policies in water and other areas to the Obama Administration’s rules. Once again, NRDC and others fired rhetorical rockets at Newsom.

What the Governor might make of all this is actually quite simple: For the most strident environmental activists, accommodating the state’s agriculture industry will never be acceptable, no matter how deep the concessions given by agriculture in the service of compromise. The goal posts will always be moved back, there will always be new threats/harms/degradations to ecosystems and species to lay at the feet of the agriculture industry, always to be remedied by payment in water.

In a February op-Ed in CalMatters, Newsom wrote, “Inaction, recalcitrance, and adherence to the status-quo puts our water future at risk.” Fair enough. As the Families Protecting the Valley coalition recently noted, the state’s water history over the last few decades has been defined by plenty of actions: A long list of statutory and regulatory actions to reduce surface water supplies to the San Joaquin Valley, for the purported benefit of the Delta ecosystem, beginning with the federal Central Valley Project Improvement Act of 1992. That law and a parade of actions since have redirected millions of acre feet per year away from farms and cities. And there has been too much recalcitrance and adherence to the status quo: Spurred on by environmental groups, the flawed and failed biological opinions were fiercely defended against any attempt at science-based revision.

These actions have rolled over people and communities, and are now part of our water history.

As he seeks to chart a smarter water future for California, Governor Newsom has an opportunity to truly break a cycle that starts with assertions of agricultural water profligacy and ecosystem harm, and ends with less water for farms, economic decline in rural regions and further social separation of the haves and have-nots of the Golden State. Another lawsuit against the Trump Administration doesn’t necessarily have to mean yet another round of adherence to that status-quo. The first step in breaking that cycle is to pull back from the brink of another decade of legal warfare that thwarts all water progress.

That means saying “no” to those who have proven that they will never say “yes.”


To weigh in on issues of importance to your business and the fresh produce industry, please contact Dave Puglia at [email protected]