Environmentalists want the federal government to cancel or renegotiate more than three dozen long-term water contracts in the Central Valley because they say they were drawn up using flawed data.
If the request is approved by U.S. District Judge Oliver W. Wanger, agricultural users both north and south of the Sacramento-San Joaquin Delta say it would likely mean less water for them.
Some say the environmentalists’ request has the potential to turn the state’s intricately woven water world upside down.That’s because some Sacramento River users say that if there’s no federal contract, they should be able to reassert their longtime state water rights — a claim that could devastate the Westlands Water District and even hurt the Friant Water Users Authority and other San Joaquin River water users.
Wanger today will hear arguments in his Fresno courtroom on the request to cancel water contracts in a case involving the tiny delta smelt, which environmentalists say is facing extinction.
They say the population decline is driven largely by reduced water coming into the delta, and also because increased pumping for users south of the delta has helped wreck critical spawning areas and is damaging the smelt’s overall habitat.Last year, Wanger threw out a key opinion on the effects of delta water pumping on the smelt. Data from that opinion — which is being rewritten by the U.S. Fish and Wildlife Service — was used to help craft the new 25- to 40-year contracts with the 42 different users.
Environmentalists say the contracts should instead be based on the new smelt opinion, which is scheduled to be finished next year.
Trent Orr, an attorney with Earthjustice, a nonprofit legal watchdog group in Oakland, said the environmentalists aren’t seeking to stop water deliveries. Instead, they want the contracts to be deemed legally invalid, but then keep the order from taking effect for one year while interim contracts are negotiated.
More potentially explosive, some say, is language in a legal brief on the contract issue filed by 22 Sacramento River settlement contractors — water users who had used Sacramento River water before the federal Central Valley Project was constructed beginning in the late 1930s.
These users say in court filings that if there are no valid federal contracts — as environmentalists want — then they would revert to using water under those pre-existing rights, and the U.S. Bureau of Reclamation’s “ability to operate the CVP would be severely compromised.” That in turn could affect users south of the delta whose supply originates in the state’s far north.Among them are the San Joaquin River Exchange Contractors Authority, which represents owners of 240,000 farmland acres in Fresno, Madera, Merced and Stanislaus counties on the San Joaquin Valley’s west side.
Unlike other west-side water users such as Westlands, the exchange contractors authority has historic water rights on the San Joaquin River — much like the settlement contractors on the Sacramento River — dating back to the 1870s. The exchange contractors subsequently agreed to instead take delta water via the Delta-Mendota Canal, but also reserved the right to reclaim their share of San Joaquin River water.
If the authority turned to its historic San Joaquin rights, that could affect water on the Valley’s east-side, including the Friant Water Users Authority and those who get water from the Friant-Kern Canal.
Ron Jacobsma, general manager of the Friant Water Users Authority, said that for the first 50 years of the CVP, there was “little or no concern” that the exchange contractors authority would assert its San Joaquin River claim. They held a priority position in receiving delta water.
But last year when the delta pumps were shut down for 10 days to protect the delta smelt and the statewide drought continued, there was “some sense there could be a problem,” Jacobsma said.
The challenge is when, if ever, such a claim might be asserted, he added. “It is a possibility, but assessing the likelihood is very difficult at this time.” Steve Chedester, the exchange authority’s executive director, acknowledged that Wanger’s ruling could have a devastating effect.
“This ruling will have far-reaching implications, not just for the south of the delta economy, but for the whole state,” he said. “We are concerned it could bring unanticipated consequences to the state that’s already reeling from an economic downturn.” But Orr, the Earthjustice attorney, called the Sacramento River settlement contractors’ legal language “posturing for litigation.” Orr said the settlement contractors have benefited from the Central Valley Project. For instance, he said, their contract with the federal government not only guarantees a set amount of water, but also can deliver it on a consistent basis.
Before the construction of reservoirs and canals under the Central Valley Project, he said, those contractors would get large amounts of water in spring and summer, but not in the fall ahead of harvest because there were no reservoirs to tap.Still, Westlands is concerned — especially with the state’s continued drought — about cutbacks in deliveries to protect the smelt and the possibility of more losses if the long-term water contracts need to be renegotiated.
“It is chipping away the water supply south of the delta,” said Westlands spokeswoman Sarah Woolf. “They’re (the environmentalists) just trying to erode any supply whatsoever that is being delivered here.”