Yesterday, the House Rules Committee had two bills before it: H.R. 3964, the Sacramento-San Joaquin Valley Emergency Water Delivery Act, and H.R. 2954, the Public Access Lands Improvement Act, but it was H.R. 3964 that received all the attention.
The bills are before the House Rules Committee, a necessary stop for pieces of legislation on their way to the House floor. This is because unlike the Senate, debate and discussion on the House floor is strictly limited, and the Rules Committee decides for how long and under what rules the full house will use to debate the proposition.
Chairman Pete Sessions began by introducing the pieces of legislation before the Committee. Of H.R. 3964, he said that it’s an important opportunity to redirect water to farmers and communities. “The lack of rainfall has exacerbated the long standing man-made drought caused by federal regulations and environmental lawsuits,” said Chairman Sessions.
“These regulations have sought to protect the Delta smelt, which is a small fish, by diverting over 300 billion gallons of water away from the farming communities that rely on water to grow their crops, to take care of their families and to feed America and the world,” continued Mr. Sessions. “As a result, thousands of farmworkers have lost their jobs and hundreds of thousands of acres of fertile farmland have dried up. This common sense jobs bill puts farmers back to work while ensuring that our substantial water resources are preserved for environmental purposes.”
“This bill is a comprehensive solution that would restore some water deliveries, ensure a reliable water supply for people and fish, protect and secure private property and senior water rights, and save taxpayers money by ending unnecessary and dubious government projects,” said Congressman Doc Hastings, Chair of the Natural Resources Committee. “We are here today considering this bill because of the Senate’s failure to act.” He noted that the House took action in the last Congress but the Senate did nothing, and now the situation is dire. “The hardworking people of California’s San Joaquin Valley cannot wait any longer. We must act now to address this emergency situation, restore the flow of water, and provide immediate relief for struggling families, farmers, and businesses.” Chairman Hastings noted that the legislation is supported by California’s entire Republican delegation. (Maven note: 15 out of California’s 53 congressional representatives are Republican. Click here for a list.)
“All of California is in drought and it is the third straight drought year,” said Congresswoman Grace Napolitano. “We all need to work cooperatively. We need a bipartisan solution for all of California. That includes Southern California. This bill does nothing for Southern California. … All of us are in drought. Not just Northern California.” Water conservation, water recycling, desalination, and continuing education need to be part of the solution, she said.
This legislation was introduced one week ago with no hearing and no mark-ups, pointed out Ms. Napolitano. “It was very partisan – introduced only by four of my colleagues, Northern California Republicans, with no meaningful conversation or cooperation with the rest of California.”
“This bill repeals historic California water rights and water law,” continued Ms. Napolitano. “It is a terrible, horrible precedent to infringe on state’s rights that may be used as an example in other states. It reallocates water for junior water rights holders above the senior water rights holders in the Central Valley, it ignores Southern California water users, and it disregards endangered species protection while privatizing a public resource for a very select few. It repeals years of careful balanced water compromises and legislation. It does not create any new water to relieve or solve the drought.”
Chairman Hastings said that the bill is virtually identical to H.R. 1837, which passed out of the Congress last year, but went no further. “We’re here today because of lack of action in the Senate,” he said. “Under our system of government, we have two houses. One house has to act and the other house has to act, and if there’s a difference between the two, you work out the differences. We’re willing to do that. … All we have heard is lip service from the senators from California. Senator Fienstein has said she is going to introduce legislation. Introducing a bill is not enough. Passing legislation is what counts.”
Congresswoman Louise Slaughter noted that 75 to 80% of the bills that come through the Committee, the Senate doesn’t even look at, and this looks to be one of those. “I understand you’re going to take surplus water from the rest of California. Where is the surplus water in California?” she asked.
“Probably the best definition of surplus water is water that is not flushed down because of an endangered species ruling, that would probably be the best surplus water,” said Chairman Hastings.
“I do have a quote here from John Laird, who is the Secretary of Natural Resources for the state of California, and he writes ‘This bill falsely holds the promise of water relief that cannot be delivered because in this drought, the water simply does not exist.’,” said Ms. Slaughter. “Do you not agree with that?”
“I’m not going to say that is an incorrect statement, but there has to be a solution,” said Chairman Hastings. “Now the collective wisdom of the California Republicans is that this is a solution. That’s their collective wisdom.”
“Their collective wisdom is to get surplus water,” said Ms. Slaughter.
“I’ll give the Californians a great deal of credit for 40-50 years ago, for managing how they can utilize that water and transfer it to other parts of California,” said Chairman Hastings. “All of California has benefited from that, but the priorities have gone away from people, and you can’t take priorities away from people, and then you have these ensuing shortages because of the droughts that happen on a regular basis. … One of the reasons why California is in this mess, from my perspective is because of previous preemption of state law. This bill here, and the bill we passed in the last Congress, seeks to remedy that preemption.”
Congressman Alcee Hastings said that his read of this legislation is that it preempts California law, so how would this legislation remedy preemption?
“It revolves around California water rights and overlapping federal water rights on California,” said Chairman Doc Hastings. “If I’m not mistaken, when they overlapped the Central Valley Project which is a federal project, it overlapped California water laws, that was a preemption.”
“The question was asked if you were taking surplus water,” said Congressman Rob Bishop. “There really is no surplus water. What you’re talking about is diverted water, water that is diverted from one purpose and trying to putting into a more meaningful use.” He pointed out that there are many important issues to be dealt with. Unemployment insurance, minimum wage, immigration bill, flood insurance passed – there are things we need to do. “When are we going to do something that’s really going to help somebody,” he said. “I’m not trying to minimize the importance of this issue; what I am simply doing is minimizing what we’re doing here today because we’re not solving this issue.”
Congressman Alcee Hastings asked Congressman McClintock if he could explain what the constitutional authority for Congress preempting state law was. “As I read this law, it seems that this bill is not about interstate commerce or navigable waters – it’s about water rights within the state, especially since it has been repeatedly affirmed that federal reclamation law does not preempt California law. … Point me toward the authority of Congress to preempt what is being done in California with reference to state law.”
“You’re referring to the Reclamation Act of 1902, Section 8,” said Mr. McClintock. “In California vs the United States, in 1978, the U.S. Supreme Court interpreted that section to mean that a clear, Congressional directive, their words, would invoke federal supremacy over any conflicting state law governing operations of a federal Reclamation project. This measure does precisely that. It doesn’t preempt state water rights, it specifically invokes and protects state water rights against infringement by any government bureaucracy – local, state or federal – which is a legitimate constitutional function of the federal government that was established under the 14th amendment and made essential by the terms of the California state approved joint operating agreement of these intertwined water systems. Federal supremacy over this issue is further established at the request of the state of California when the Central Valley Project was first envisioned.”
“I find your response interesting because it seems that my colleagues here in this institution hand-pick the times they want to use state’s rights and then blast them on other occasions,” said Mr. Alcee Hastings. “I accept fully your response but I do not believe that it gets to the point of what is happening here and that is preempting what is in my view California’s prerogative.”
“California has a plan,” continued Mr. Alcee Hastings. “The Bay Delta Conservation Plan that has brought together representatives of the competing interests who recognize that they must work together to sustain one another with limited supplies of water. The Republican bill would undermine that effort by demonstrating that any agreement can be broken at any time by legislation. The state’s water users, all of us, need laws that support, not subvert, efforts to balance our water use.”
He pointed out the irony of those who on the one hand, continue to assert that climate change is not the result of human activity, yet pn the other hand,can somehow attribute the current drought to be “man-made”. The lack of precipitation is due to a ridge that meteorologists have dubbed the ‘Ridiculously Resilient Ridge,’ said Mr. Alcee Hastings. “My belief is that the adjective could apply to this bill as being just as ridiculously resilient because it keeps coming up over and over again to go nowhere. And why we are not addressing issues that are critical to this nation generally and bringing up measures that we know are not going to pass the U. S. Senate and no effort is being made to talk with them … I can pick up the phone and call them so I don’t understand why other people can’t do that, and that we can’t get on about the business of trying to correct these issues.”
“It’s interesting to note that we’re in the third year of drought, and despite that, we have still diverted 1.6 MAF of water desperately needed for storage for the amusement of the Delta smelt,” said Congressman Tom McClintock. “That’s water that could have been used to reverse the situation that Californians face. We in Sacramento watched the Sacramento River at full flood as that water was released into the Pacific Ocean when it was desperately needed to be retained behind our dams that are now virtually empty. It’s true that we cannot create rain, but we can take measures to increase storage and reinforce existing water rights and increase capacity and insure that we never have to face a crisis of this magnitude again.”
Mr. McClintock pointed out that provisions in the bill allowed for the expansion of Lake McClure by 70,000 acre-feet, gives local water agencies the ability to store the additional surplus water in New Melones, and sets a deadline for the Secretary to come up with a plan to increase storage by 800,00 AF to fulfill the promise that was made and broken in the CVPIA. The bill also authorizes the Bureau of Reclamation to partner with other agencies to advance other water storage projects.
“Here’s the bottom line,” said Mr. McClintock. “Everyone thinks that the Colorado River is the mother lode of all water in the western U.S., but it is a junior sister to the Sacramento. The Sacramento has 20% greater water flow. The difference is this. We store 70 million acre-feet of water on the Colorado and only 10 million acre-feet on the Sacramento. We desperately need to increase storage and until we have increased storage, we desperately need not to waste that water by dumping it into the Pacific Ocean.”
“With respect to salinity in the Delta, this measure guarantees 800,000 acre-feet of water to preserve the Delta habitat and hold back salt water,” Mr. McClintock continued. “Above this amount, it’s not necessary to maintain the freshwater barrier, and it is simply dumping the water into the ocean. And I would reiterate that in a time of a severe shortage, that’s the last thing we ought to be doing with that water. We ought to be assuring that it is conserved in storage and released for the benefit of the human population of California, which if you look at the population, counts as probably one of the more endangered species within the borders of that state.”
“Los Angeles gets their water from the Colorado River and from Sacramento-San Joaquin Delta, so if they want to give up their water, then someone from those regions should offer an amendment, we’d accept it and put it into this bill,” said Congressman Devin Nunes. “We can strip their water rights, too. But that’s what happened. By the Endangered Species Act and with the laws that were passed in 1992, and then again in ’07, they took our private property. So we’re not asking for anything but our property back.”
“This bill in its current form does overturn California law,” said Congressman John Garamendi. “It also pushes aside the California constitution and basically upsets virtually every water contract in the state of California and court cases that have been settled over long running disputes. It is not the way to solve the current crisis and certainly not to solve the long-term crisis because it does take water from somebody and gives it to somebody else.” He offered an amendment that he said removed the contentious parts of the legislation and instead promoted existing water conservation and water recycling programs, as well as increased storage.
“The last time California had a severe multi-year drought, something very different and very historic happened,” said Congressman Jared Huffman. “Democrats and Republicans came together in the state capitol … For the first time in decades, a bipartisan supermajority of the California legislature came together to pass sweeping water reforms to solve the problems of the Bay-Delta and also to promote greater water supply reliability statewide. These water reform breakthroughs of 2009 received national media attention, they were supported by people throughout the state, the New York Times called them the most significant water reforms since the State Water Project was put in place in the 1960s. I would like to offer an amendment to clarify that even though we may not be at a point of bipartisan problem solving here in the Congress like the California legislature was a few years ago, let’s at least make sure we’re not preempting, through this sweeping preemption language in this bill, the best thing to happen in California water in half a century.”
“The second amendment I would like to submit would clarify that the broad preemption language in this bill likewise does not preempt Native American water and fishing rights,” continued Mr. Huffman. “I don’t know if it was the intention or not, but there are numerous provisions that are written so broadly that they could easily preempt the use of water and certainly the right to fish and the enjoyment of that water and that could affect lots of tribes throughout the state, and so my second amendment would offer that clarification.”
“This whole issue of state preemption is just a false red herring put up by the left because they know what they’ve done to our region is wrong,” said Congressman Devin Nunes. “They’ve taken people’s private property. And so they put up the state preemption argument, which is total nonsense, they all know it, because the federal government controls most of the water in the state. … the way the water was taken away from us was by preempting state law, so every time you move water in California, you preempt state law.”
“There is an important clarification in California water law,” said Mr. Huffman. “The constitution of the state of California provides that all water in the state belongs to the people of California. It is not private property. The public resource is then allocated and administrated through the State Water Resources Control Board. That entire mechanism for managing public resources is what would be preempted and taken away, including the public trust doctrine, which not only goes back to the founding of California, it goes back to Justinian law, Roman code. I think those are important clarifications when we talk about the reach and the scope and the disruption caused by the preemptive language in this bill.”
Congressman Michael Burgess asked Mr. Nunes what is preventing him from solving the problem?
The Senate has refused to engage, said Mr. Nunes, pointing out that once Speaker Boehner came to California, the Senate had to respond. “Before that they refused to respond largely because in order to get elected in the State of California … you don’t make it through a Democratic primary without the endorsement of NRDC, Sierra Club, and all the environmental groups, and the same goes for the statewide candidates so the Governor, the senators in our state, they don’t want to upset NRDC, they don’t want to upset the Sierra Club, and I understand why. People have made millions, the lawyers for NRDC have made millions off of this water. They’re rich! They’ve sued, they’ve taken people’s property rights away. I get it. But at the end of the day, my constituents lost their private property rights in this while others got rich and others get water for free.”
“We’re in the midst of a very severe drought and that’s the underlying problem here,” said Mr. Garamendi. “There are solutions to this issue but we’re now caught up in a major water fight in California of which this particular bill is one of the battles going on. Unfortunately, it does not solve anything.”
Mr. Garamendi explained how the San Luis Unit was the last unit to become part of the Central Valley Project and has the junior water rights sometimes referred to as the shortest straw. “It has the interruptible supply,” he explained. “When there is a drought, when there is a shortage of water, the San Luis Unit specifically the Westlands Water District, has the shortest supply and it is the one that is interrupted. It’s not taking private property rights; it is a right that is granted under a contract with the federal government and the state of California allocating the water. It is in the contract itself between the federal government, the state of California, and the district. And in this case, it may get no water at all. It is in their contract and has been in their contract since the inception of that contract some 50 years ago. Ever since that contract was put in place, this water district, the largest in the nation, has tried to get a higher priority. This bill would do that to the detriment of every other water user in the state of California. That’s the problem here with this bill. There is a solution to the California water crisis that’s going to take a different approach. …. This bill, unfortunately, overrides California law, contracts and constitution, and creates a huge war without solving the problem.”
“Here we go again because unfortunately, we need to be working together and we’re not there yet,” said Congressman Costa. He said that although he had supported the previous legislation, he pointed out at the time that he felt there were some problems and this legislation had similar challenges as well. “Certainly Senators Feinstein and Boxer have indicated their view; the Governor has indicated his view as of yesterday. If we don’t start talking to each other, we’re going to get nothing done. If this legislation were to become law tomorrow, and I intend to vote for it, unless we get any meaningful rain or snow in the Sierra, it will not bring one more drop of water to the people I represent who are looking at a 0 allocation. … Senator Feinstein intends to introduce legislation this week; I am working with her on that legislation, and at some point, we have to get past the political posturing, we’ve got to work together.”
Congressman McClintock said that the bill restores the water allocations that were established under the Bay-Delta Accord in 1994. “When that agreement was signed, Interior Secretary Bruce Babbit assured all parties that ‘a deal is a deal’ and if it turns out that there’s an additional need for additional water, it will come at the expense of the federal government,” he said. “The water diversions for the Delta smelt shattered that promise. This bill simply redeems it.”
Congressman David Valadao said that he has spent a lot of time reaching out to the Senators; he’s had quite a few conversations with both Senator Feinstein and Congressman Costa, so ‘this isn’t something we’ve been hiding from people.’ This is an important piece of legislation that we can bring forward and pass, and as soon as the Senate wants to bring some ideas to the table to help solve the problem, ‘that’s great.’ “We’re happy to work across the aisle, we’re happy to work across the Capitol, we’re going to continue to reach out, but as far as ideas or what’s being pushed, we need ideas that fix our problem today,” said Mr. Valadao.
The Rules Committee then discussed the rules, which include consideration of only the eight amendments that have been brought forward by the Democrats. No further amendments will be allowed. There will be one hour of debate. Congressman Rob Bishop will handle the matter for the Republicans, and Congressman Alcee Hastings will handle the matter for the Democrats. The legislation moves to the House floor today, Wednesday, February 5th.