Delta Smelt v. Central Valley Farmers: The Battle Continues

In 2007, federal judge Oliver Wanger imposed limits on the amount of water pumped from the San Joachin-Sacramento River delta to farms in California's Central Valley in order to protect a two-inch endangered fish called the Delta Smelt. As a result, several hundred thousand acres of farmland on the west side of the Central Valley now lie fallow, and many thousands of jobs have been lost. In the city of Mendota, for example, the unemployment rate exceeds 40%.

Today, the US House of Representatives debated H.R. 1837, a bill that would turn the pumps back on. House Speaker John Boehner said on the House floor today that using the Endangered Species Act to protect a fish at the expense of food production and economic growth is "a perfect example of the overreach of government."

If the bill passes, Obama says he'll veto it.

Reason.tv on the Delta Smelt.

Comments

[Tim]

He who smelt it delta'd it.

[Colonel_Angus]

Who named that fish? It sounds like there's not much benefit to having it around anyway.

[Tulpa]

several hundred thousand acres of farmland on the west side of the Central Valley now lie fallow

You mean several hundred thousand acres of desert that the state steals water from northern California to irrigate?

Without state intervention there would be no farms there. Indeed, farmers in Northern California have been complaining about the state's water diversion to the south for decades.

[Jeffersonian]

Given that the State has claimed jurisdiction over all the waterways in America, it means you cannot irrigate from one without intervention. The solution seems to be getting the state out of the way to provide for private irrigation.

[Tulpa]

Private irrigation of that sort isn't going to happen. The Central Valley farmers would have to pay a fortune.

[Bryan C]

Not necessarily. They'd only need to pay more than the farmers in Northern California.

[angus]

They'd also have to pay more than the Green lobby who want there to be lots of smelt.

[Tulpa]

It would cost much less money to sell the water to farmers WHERE THE WATER ALREADY IS.

Jesus.

[juris imprudent]

Paging Sam Kinison, paging Mr. Kinison.

[Jeffersonian]

Possibly true, but we won't know until the private entity prices the service up, no?

[Tulpa]

It's not a difficult thing to figure out.

No one's tried replacing their plumbing with cardboard tubes, but we can be fairly sure it would result in a lot of leaks.

[Mike M.]

So why would a federal judge have to intervene? Sounds like a California state issue to me.

[R C Dean]

The Endangered Species Act is federal, so a federal judge issued the order enforcing it.

[rho]

This.

If you're growing stuff in the desert, expect your water to be shut off.

The size of the smelt is not a factor here.

[Ken Shultz]

Also, the water rights for these farmers were probably attached to the land, in which case the government may be coming in and overruling someone's property rights in the name of saving some endangered species.

The water is apparently low, which is why the government is, apparently, holding it upstream to benefit the endangered species, but that hardly means the farmers don't posses any water rights--certainly their water rights shouldn't depend on the government saying it's okay under normal circumstances.

See, they got these things called "rivers". Rivers move water from the mountains towards the sea.

There's a river called the Sacramento River, which meets the San Joaquin River at the delta, and guess what city is on the San Joaquin River?

I'll give you a hint. It rhymes with Mendota. ...and it's in Fresno County--not Southern California.

[rho]

What the hell are "water rights"?

[Ken Shultz]

Water rights are the free market solution to scarcity of water--and it's how farmers have decided who gets how much water out of the river, what have you, for eons.

You can buy and sell water rights downstream, too. It's typically tied to your title. Think of it like mineral rights.

Sometimes, when the become particularly valuable, farmers will sell excess water rights they don't need to real estate developers or other farmers.

Water rights, and markets in water rights, are the libertarian solution to water scarcity. And this appears to be an example of the government stomping all over them.

[Ken Shultz]

Here you go:

http://en.wikipedia.org/wiki/W.....ted_States

[Colonel_Angus]

Water rights actually have a number of forms in the various state and federal common law systems in the United States. To say that they have anything to do with a free market or property rights is false in many cases. In the western states most of the water "rights" are actually government stomping all over property rights in favor of supporting a population or an agriculture industry that has no entitlement to be there.

[Ken Shultz]

Oh, if the federal government is claiming water rights because they own the forest or something, that's something else entirely.

But farmers' having water rights is absolutely libertarian. That's the most libertarian solution possible.

And water rights do get bought and sold--to deny that there's a market in that is factually incorrect. And a market is exactly what you want to see if you want to see the water go to the most efficient, productive use.

But when the government says it has rights, that's not what we're talking about when we're talking about farmers having water rights.

These farmers own their water rights just as sure as they own their land.

[Ken Shultz]

If there's a more libertarian solution to water scarcity than farmers acquiring and trading water rights--and then maybe losing them if they don't exercise them for long periods of time? Then I don't know what that is.

If all the water rights really were owned by the government at its discretion? I'd advocate putting a water rights system in similar to what we already have right now.

[Colonel_Angus]

Its not exactly that the governments are claiming a right to the water, its the "water rights" under the property systems that have been upheld that do things like allocate a specific amount of water to an area or shit like the first person who ever settled the area has priority of water even from land he never owned.

http://www.waterinfo.org/rights.html

[Colonel_Angus]

You also get whacky shit where basically all the natural (rain, surface, ground) water on your property might be "owned" by another property that is detached by miles, whose owner has no practical way of collecting, transporting, or using this water. They might be way upstream from you so the water doesn't even flow to them. Furthermore, the current holder of the water on your property might not even know they own it. These stupid title restrictions should be easily terminable by non use, perhaps even automatically after a period of time. But they don't.

Lesson here: Never consider selling a permanent restriction to the use of your property, negotiate a license that can terminate when some condition is met instead.

[Ken Shultz]

the first person who ever settled the area has priority of water even from land he never owned.

I like the idea of senior rights taking precedent.

For finance reasons, it can be important to be able to look at these things over the really long haul. Especially when you're dealing with land leases and things. Leases can go for decades, hell I've made offers to lease land for 99 years--the bank wouldn't finance a construction loan on leased land unless it was at least a 99 year lease.

Banks want to know that the land is still going to be worth what it was 15 years after they make the loan--in case they repossess--and if your water rights somehow degraded in the interim? That would make your farm worth much less.

As long as the new guys know what they're getting when they buy...

Farms are hard enough to finance with weather being variable and droughts.

[Colonel_Angus]

Perpetual senior water rights fly in the face of most American common property precedent that includes homesteading and adverse possession- derived from natural rights principles best summed up as "use it or lose it". If the water was so important to that original user, why didn't he establish the source itself as his property?

The banks are fooling themselves anyway. More water is being allocated than actually exists. Things like farms and developments should be difficult to obtain financing for where water is scarce, that is a market indication that it is not a good idea to have a farm there.

[Ken Shultz]

These farmers own their water rights just as sure as they own their land.

That's why I think the federal government should be compensating these farmers for the water they're taking.

"...nor shall private property be taken for public use, without just compensation."

----5th Amendment

I don't know if they are, but if they aren't? They should.

[Tulpa]

You can buy and sell water rights downstream, too.

Any water rights related to this situation belong to Northern California farmers. The water doesn't flow naturally to the central valley, it's pumped there by the state.

[Ken Shultz]

Again, Tulpa. From what I can tell?

According to the article, this is happening in Mendota. This is happening in Fresno County! Fresno County is not in Southern California.

http://maps.google.com/maps?q=.....a&t=h&z=15

That's how far they're trucking their water from the river.

They're on the damn river!

[Sevo]

Tulpa|2.29.12 @ 9:11PM|#
"Any water rights related to this situation belong to Northern California farmers. The water doesn't flow naturally to the central valley, it's pumped there by the state."

Under the conditions of what year?
Until the dams in No Cal (Shasta, Oroville, Whiskytown, Folsom, O'Shaughnessy) were built, the water flooded from the northern and central Sierra to the central valley, filling it down to Bakersfield. The Mokelumne and the Tolumne added to that from the southern Sierra.
Not sure how you could identify which water was 'north' or 'south'.

[juris imprudent]

What the hell are "water rights"?

An archaic and poorly constructed set of property law that in the Western U.S. is a source of never-ending litigation and controversy.

[Ken Shultz]

Aren't all rights a source of never-ending litigation and controversy?

[Paul]

The size of the smelt is not a factor here.

Size always matters.

[Dr Ruth]

No, it doesn't. It is perfectly fine for the woman to pleasure herself after the man finishes.

[Colonel_Angus]

F- for not working in some kind of fish joke.

Like "...after the man fishes."

[Red Rocks Rockin]

You mean several hundred thousand acres of desert that the state steals water from northern California to irrigate?

Without state intervention there would be no farms there. Indeed, farmers in Northern California have been complaining about the state's water diversion to the south for decades.

You're basically describing what's enabled settlement of most of the trans-Mississippi west since 1900. Without all those water diversion projects, canals, and dams from the Bureau of Reclamation, even the ones devoted solely to agriculture, it's doubtful the western US would be as densely settled as it is today.

[sloopyinca]

Um, before irrigation, these farms got their water via streams and rivers from the abundant amount of snowfall the sierras get annually. The problems came about once the state started to regulate the flow of water.

And it's odd that you never once heard of farmers from the west side having pitched battles with farmers from the east side because the rivers were dry by the time they got to their land.

[Ken Shultz]

You mean several hundred thousand acres of desert that the state steals water from northern California to irrigate?

Without state intervention there would be no farms there. Indeed, farmers in Northern California have been complaining about the state's water diversion to the south for decades.

It had no idea what it was talking about when it wrote that.

Somehow Fresno County is in Southern California; the San Joachin-Sacramento Rivers run from Northern California to Southern California; and there wouldn't be any farms in Fresno country if it wasn't for government intervention...

It's almost the perfect post!

[Tulpa]

What happened to the water from the abundant snowfall? Did the state truck that away? Why does it now need to be irrigated?

[Colonel_Angus]

The state diverted it, so that now all land must be irrigated.

[Sevo]

Tulpa|2.29.12 @ 9:19PM|#
"What happened to the water from the abundant snowfall?"
What abundant snowfall, what year?

[R C Dean]

It'll die in the Senate. Obama won't even have to come in from the back nine to veto it.

[Applederry]

Although he'd be doing it for the wrong reasons, Obama SHOULD veto it if it passes. At least as far as I understand the issue, this is entirely a California issue and it's for Californians to decide, not the federal government.

[Ken Shultz]

In 2007, federal judge Oliver Wanger imposed limits on the amount of water pumped from the San Joachin-Sacramento River delta...

When a federal judge imposes a judgement based on the Federal Endangered Species Act, why isn't that a federal issue?

[BC]

You don't understand the issue. It's a federal issue because the Delta smelt is protected by the Endangered Species Act.

[Ken Shultz]

Exactly.

A federal judge is depriving private individuals of their water rights--which are bought and sold as property, mind you--because of the federal endangered species act.

...yeah, that's a federal issue.

What are the state legislators supposed to do?

[Ken Shultz]

In other words, this is like eminent domain by the federal government. It's just that they're taking the farmer's property to help protect some species rather than using it to build a road or something.

...except I don't think the federal government is offering these farmers just compensation for taking away their water rights, are they?

[Paul]

At least as far as I understand the issue, this is entirely a California issue and it's for Californians to decide, not the federal government.

By vetoing the bill, Obama is making sure the original Federal intervention stands, and stopping the State from asserting itself in the fight.

[Russell]

Little did Zorg suspect that The Destructor would take the form of a smelt.

[Ken Shultz]

Now can we talk about fairy shrimp?

I'm certain most Americans aren't aware that some species on the Endangered Species List--need to be observed under a microscope to confirm their existence!

http://en.wikipedia.org/wiki/C.....mp#Threats

Thank you.

[Ken Shultz]

Just for the record, the Central Valley runs from Redding to Bakersfield.

http://en.wikipedia.org/wiki/Central_Valley_(California)

The city of Mendota is in Fresno County--not Southern California.

[sloopyinca]

OK, I'm ready to chime in on this because I most certainly know more about it than the rest of the posters here, seeing as it's a part of my job.

First, it's not just about the amount of water needed for the fish. It's about how CA has manipulated reservoir levels to show the water is needed in different parts of the state more than others. Second, the farmers on the west side who also own land in the mountains (that they do not farm) are getting the water they need based on the acreage they own, as opposed to what they actually utilize.

[sloopyinca]

Third, this is a power-play by the state's version of an EPA to dictate what people can do with their own land. That is proven because the endangered fish do not reside on or near any of the farms that are being impacted by the water restrictions. Also, they will not issue any more well-digging permits for those farmers so they can pump and de-salinate their own water supply. Fourth, these farmers were not given an opportunity to change to hardier crops prior to the ruling, which many of them could have done. Had that been the case, their land would have remained moderately productive, even with a reduced supply of water. As things stand now, they either get water (due to their abundant acreage elsewhere) or they don't. IOW, land is either a desert or it is flush with crops that require a lot of water.

[sloopyinca]

Lastly, the whole "it's a desert, what do you expect" bullshit is just that: bullshit. Before the canal system was dug, the water from the mountains ran down into the valley through rivers and streams, & farmers used these natural waterways as a conduit for their water supply. Only after the Corp Of Engineers came in and manipulated the flow of water did these problems arise. Farmers maintained their own reservoirs and farmed according to their ability to store water. Their ability to control their own destiny went out the window when the government got involved "for their own good."

Look, I've been in offices of men crying as their orchards are being plowed under. I've heard the stories and attended the meetings where they were told their land was now going to be unfarmable, and to pound sand because of some fish that would migrate if the salinity of their habitat became too high.

[Sevo]

sloopyinca|2.29.12 @ 7:17PM|#
"Lastly, the whole "it's a desert, what do you expect" bullshit is just that: bullshit."

There are deserts, such as the Sahara and the Gobi and the Mojave. But you'd have to be pretty clever with the definition to call the central valley a desert:
"1906: California flood
A storm in late 1906 reported highest ever rainfalls in a southeast to northwest direction from Monterey to Ione in the Sierra Nevada foothills. An area of 300,000 acres (1,200 km2) was flooded in the Sacramento Valley.[1]"
And this wasn't the largest flood.
http://en.wikipedia.org/wiki/Floods_in_California

[Jeffersonian]

Interesting, SI. Thanks for the info.

[juris imprudent]

I'm not sure if it applies in this specific case (Mendota), but I've seen too much land in cotton cultivation in both the Central Valley and Arizona to not slam those dumbasses with "it's a fucking desert".

That said, water law in the Western states is just about the most fucked up and non-market based system you can imagine, with or without the federal thumb on the scale.

[Ken Shultz]

That said, water law in the Western states is just about the most fucked up and non-market based system you can imagine, with or without the federal thumb on the scale.

To whatever extent it's screwed up, it's screwed up because of government putting its thumb on the scale.

That being said, it looks like a market to me:

"Each year hundreds of water transfers occur in California. The majority of these transfers are between agricultural water users in the same hydrologic basin and do not require review by other government agencies."

California Water Plan Update
California Department of Water Resources
Top of Page 7 of 16

http://www.waterplan.water.ca......wp2009.pdf

If people are buying and selling and leasing water rights hundreds of times a year, it may not be a perfect market, but why would you say that's not a market?

[Ken Shultz]

Second, the farmers on the west side who also own land in the mountains (that they do not farm) are getting the water they need based on the acreage they own, as opposed to what they actually utilize.

Isn't that because the water rights are typically tied to the land?

Some people buy themselves more water rights, but why wouldn't we expect to see people with more land generally have more water rights?

[sloopyinca]

Because the land they own in the mountains is either range for cattle that needs no water, or it is high and east enough that it routinely gets enough water naturally.

Oh, and the fact that that land in the mountains isn't even connected to the CA Aqueduct System in any way, shape or form might have something to do with it.

[Mr Whipple]

I thought this was really about the salmon. The salmon feed on the smelt. Less smelt - less salmon. From what I understand, salmon fishing in Northern California is practically dead.

[Sevo]

I think it's coincidental; salmon don't eat when they migrate to breed.

[Ken Shultz]

I used to think that about fairy shrimp, too.

We had the State, county and federal wildlife people out on a site all at the same time to survey our possible fairy shrimp habitat--some of which were puddles two inches wide and half an inch deep...

So, I asked 'em if the endangered species of fairy shrimp were vital to some migrating bird or something? Is there something important that feeds on them?

The answer was no. They're just on the list because they're endangered. To protect the diversity of life on this planet...

...even the microscopic life! Microscopic f'n fairy shrimp, damn it.

[Wayne Lusvardi]

Thanks for covering this water bill - HR 1837 the San Joaquin Valley Water Reliability Act (Devin Nunes-R). Actually the bill has nothing to do with the Delta Smelt. What it does is overturn HR 146 (Dianne Feinstein, 2009) which took water from Central Valley farmers and gave it to northern California fishing, recreational and real estate interest in a water and wealth distribution scheme.
Feinstein's 3-year old bill was passed when Congress and Presidency was all Democratic.
HR 1837 undoes the politicization of water contracts in the prior Feinstein bill by way of eliminating environmental impact reports (a code word for wealth distribution to fictional impacted parties. HR 1837 does not allow fishing and recreational interests to have first dibs on water during a drought either.
For more on this go to:
http://www.calwatchdog.com/201.....consensus/

[Ken Shultz]

HR 1837 undoes the politicization of water contracts in the prior Feinstein bill by way of eliminating environmental impact reports (a code word for wealth distribution to fictional impacted parties.

Opening something to public comment like that really can make people's rights unnecessarily iffy, and other people's property rights really shouldn't be a popularity contest...

Added to that, unnecessarily requiring people to do an EIR--because of the cost and time involved--is practically cruel and unusual punishment.

EIRs are an onerous and often unnecessary burden for professional property developers--much worse for other people. They can take twelve to eighteen months or more and can costs hundreds of thousands of dollars.

[Wayne Lusvardi]

Reply to Ken Schultz:
It's even worse. An EIR would just be retroactive. Imagine if we had to go back and apply California's enviro law CEQA to everything built since 1900. But that's what we're doing. And behind it is a wealth redistribution scheme.
WL

[anonymouseketeer]

"San Joachin?" Has there been a change of spelling that I somehow missed?