Brenda Davis on Studio Sacramento

Recenlty, Ms. Davis was asked to participate on a panel addressing issues facing the Delta.

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It’s All In How You Spin It…

After reading a recent blog, “Delta Smelt Get Life From Supreme Court” by Earth Justice contributor John McManus, which described the Supreme Court’s “big rebuff” of a non-profit’s challenge to the constitutionality of the extension of endangered species protection under the Commerce Clause (a power related to interstate commerce) to a species that was limited to a geographic region in one state, I decided to actually read the case. To my shock and amazement (not really), I discovered that McManus’s characterizations of the case were hardly accurate.
While ultimately the Court did conclude that the challenge to the extension of commerce power failed as “ ESA is “substantial[ly] relat[ed]” to interstate commerce and, thus, the Growers’ as applied
challenge to ESA §§ 7 and 9 fails”, the decision did not leave nearly the impression that Earth Justice blogger suggested. In fact, after the reading of each, I was left with the thought, “Why didn’t he just paint a thick, villainous looking mustache on the non-profit’s picture”?
When I compared the two, here’s what McManus portrayed as the non-profit’s motivation:
“What got PLF so bothered about the delta smelt is that the fish’s preservation requires state and federal water managers in California to leave a little water in the Sacramento-San Joaquin River Delta in order to keep it from going extinct.”
Here’s what the court said:
The Growers have Article III standing to challenge the no take provision in ESA § 9 because the Service’s coercive power to enforce ESA § 9 caused the Bureau to reduce water flows, which injured the Growers.”

McManus:

“We disagree with PLF’s priorities – that property owners have a right to water that belongs to all citizens; and to rid their property of rare American wildlife at the expense of the rest of us. America’s wildlife is something we all share – especially when we’re talking about fish in public waterways”. McManus continued by theorizing that the non-profit believed that it was “entirely within the rights of property owners to do as they please even if that means killing off the last bald eagle or grizzly bear”, while drawing a comparison to the railroad barons of the 19th Century.
The Court:
“..the Growers alleged that—as applied to the delta smelt—the Service’s application of ESA § 7 and power to enforce the “no-take provision” in ESA § 9 were unconstitutional under the Commerce Clause. The Growers claimed that, since “the delta smelt is a purely intrastate species, and because it has no commercial value, Sections 7(a)(2) and 9 of the ESA . . . as applied to [the operation] of the Central Valley Project and the State Water Project, are invalid exercises of constitutional authority [under the Commerce Clause].”

As a note, should the Court have found that the Commerce Clause (intended to regulate commerce among the states) was not applicable, it seems to me that California still has its own Endangered Species Act that could offer protection to our own delta smelt. But, that would probably not have the same effect as the thick, villainous mustache.

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Killing Trees to Save Fish

On August 2, 2011, the Delta Stewardship Council released the 5th Draft of the Delta Plan (225 pages plus 243 pages of appendices—not to mention the summary or cover letter, 4th Draft Plan 180 pages, etc.). This draft is intended to be the basis for the Environmental Impact Report (EIR) that will be released later this month. [Comments on the 5th Draft are due by September 26, 2011].

This release came right on the heels of the California Dept. of Fish and Game’s release of the draft Conservation Strategy for Restoration of the Sacramento-San Joaquin Delta Ecological Management Zone and the Sacramento and San Joaquin Valley Regions (341 pages).

Over the years, I feel confident in estimating the number of pages dedicated to the California Bay-Delta has exceeded 1 Million. In my personal experience, many of these pages are duplicative, redundant and say the same thing. (haha).

Hopefully, the destruction of trees has been worth it, but, in the end I have a feeling we will say that the layers of bureaucracy created in the efforts to save the Delta left us unable to see the forest for the trees.

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The Attack on California Farms moves to a New Frontier

Is it just me, or is agriculture being attacked on every front you could imagine?

First, the regulatory wars over water in the California Delta dry up a majority of the San Joaquin Valley, one of the most fertile and productive areas in the state, causing lost jobs and long lines of hungry families showing up at food banks. Just when those images disappear from the evening news and there is finally some sanity returning to the water distribution policies, you hear about “new regulations” of the “Reasonable Use” doctrine (a legal framework that determines what is a “reasonable use” for water). For instance, are those pesky farmers watering their crops too much…or for the wrong reasons…or at the wrong time….

Now, about 120 miles of farmland in the San Joaquin Valley has been selected by the California High Speed Rail Authority (“Authority”) for construction of the first leg of the new high speed rail track.

During a time of economic bedlam, the Sacramento Bee reports the Authority is accepting bids for a contract worth up to $40 million for a company that can negotiate, or, if that fails, set up for taking in eminent domain proceedings the farms, businesses and homes of those farmers standing in the project’s way.

As if farmers did not have enough to worry about…Hopefully, none of the farmland is home to any endangered species. I hear that farming can sometimes be disruptive to their habitat….Imagine how disruptive a train going 220 miles per hour will be.

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No Substitute for Doing It Right (“Guidance” Documents v. Rule-making)

The EPA has recently run into troubles because of its reliance of “Guidance” documents that have not been though the administrative rule-making process under the Administrative Procedure Act (5 U.S.C. § 701, et seq.) This most recent trouble, in the case of Natural Resources Defense Council (“NRDC”) v. EPA, F.3d 2011 WL 2601560 (D.C. Cir. 2011).
In this decision, the court considered the effect of the guidance, particularly, whether the Guidance “announces a binding change in the law”. The court ultimately concluded that the Guidance did reflect a “binding change”, specifically pointing to the fact that, before issuing the Guidance, no other authority (e.g., statute or case law) allowed the EPA to accept alternatives to the Section 185 fees at issue. (Id at 7).
The language of the Guidance document was found to support the conclusion that the EPA has “definitively” interpreted Sec. 172(e) of the Clean Air Act. (Id at 7).
The Court also observed that the Guidance “altered the legal regime” by resolving the question “Is it legally permissible under either section 185 or 172(e) for a State to exercise the discretion identified in the [U.S. EPA Clean Air Act Advisory Committee Task Force letter]?” in the affirmative. The Guidance was found to bind the EPA regional directors and “thus qualifie(d) as final agency action”.(Id at 8).

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Splitting Hairs

A citizen group, oddly comprised mostly of fishermen and conservationists, has launched an assault on the Agricultural Exemption under the Clean Water Act (“CWA”) (33 U.S.C. sections 1251, et seq.) On June 7, 2011, this group issued a sixty day notice of intent to sue the U.S. Bureau of Reclamation and the San Luis & Delta-Mendota Water Authority for operation of the Grasslands Bypass and San Luis Drain. The citizen group has claimed that agricultural return flow, currently exempt from the permitting requirement under Section 402 of the CWA, is not exempt because it is “predominantly contaminated groundwater, not just irrigation return flows”.

The group is likely attempting to expand a recent U.S. Supreme Court ruling in South Florida Water Management Dist. V. Miccosukee Tribe of Indians (541 U.S. 95 (2004)) for the principle that any discharge that is not entirely composed of “agricultural return flows” is not exempt from the CWA Section 402 permitting process. However, in that case, the matter was remanded to the lower court for a determination as to whether the canal and wetlands involved were “distinct water bodies”.

Should the group succeed, this would result in a massive limitation to the “agricultural exemption” and could have far-reaching consequences.

The Group’s 60 Day Notice of Intent to Sue can be found at http://www.bwdlawgroup.com/ in the “News Room”

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Down By Law

A gutsy bid to excuse a joint powers authority comprised of 16 water agency members of the Tehama Colusa Canal Authority located north of the storied Sacramento-San Joaquin River Delta from sharing in water shortages has left them high and dry. In a definitive federal court ruling from a federal judge who has ruled on a lion’s share of water allocation disputes, the U.S. Bureau of Reclamation (USBR) has preserved a right to decide when and how it distributes water under contracts that come under the scrutiny of the State Water Resources Control Board and drive the federal Central Valley Project operations.
The court’s decision in Tehama Colusa Canal Authority v. U.S. Dept. of the Interior broadly interpreted the USBR’s discretion to basically ignore what are known as “area of origin” protections under California Water Code § Section 11460. In the court’s unequivocal view, “The reality of the state area of origin priority statutes is that no express water rights are created by the law.”

In the old tradition that “bad cases make bad law”, many north of Delta water users might have preferred not to have this 88 page paper trail when seeking to vindicate local protections considered decades old and highly treasured in the north versus south water wars. Alas, the quiver is now short by at least one arrow.

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