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Sen. Feinstein: ‘We’ve Got to Reach Consensus’

At the first hearing on Sen. Dianne Feinstein’s controversial drought legislation, it emerges that the Obama administration supports the bill. But a deeper look shows that many concerns remain, leaving consensus still in doubt.

Written by Matt Weiser Published on Read time Approx. 8 minutes
FILE - Sen. Dianne Feinstein, D-Calif., talks to reporters at a news conference on Capitol Hill in Washington. Sen. Feinstein has introduced drought legislation in the form of Senate Bill 2533.Scott Applewhite, AP

Sen. Dianne Feinstein’s drought legislation, Senate Bill 2533, has been the focus of much attention in recent months as it is viewed as a potential solution to California’s water woes.

Short-term solutions in the bill include changes in federal law that would direct water and wildlife agencies to operate differently in order to make more water available from Shasta Reservoir and the Sacramento-San Joaquin Delta. Some of these changes involve adjusting how agencies manage biological opinions, a set of rules imposed under the Endangered Species Act (ESA). Long term, the bill would provide millions of dollars to help build new water storage and treatment projects.

The bill is supported by water agencies and agriculture groups. But it is opposed by conservation groups and fishing organizations, who fear it will worsen conditions for California’s endangered species and their stressed habitats.

Feinstein’s bill had its first hearing on May 17 before the Water and Power Subcommittee of the Senate Committee on Energy and Natural Resources. Although the hearing lasted two hours, S. 2533 got less than an hour of attention because four other bills were also covered at the hearing. In addition, discussion and questions were almost nonexistent because, at times, only the subcommittee chair was present to hear testimony while other members departed to cast votes in Congress on other matters.

Below is a summary of the testimony on S. 2533 from the hearing. It has been edited for brevity and annotated with additional context.

Sen. Dianne Feinstein:

The House has passed a bill (H.R. 2898, by Rep. David Valadao, R-Hanford) that I don’t believe, candidly, can pass the Senate. So our goal has been to draft legislation that can pass the Senate, then hopefully conference with the House.We’ve got to reach consensus prior to congressional action, and there appears to be no immediate end in sight. The state has estimated that 150 percent of average snowpack in March is necessary to end the drought. We ended up with about 80 percent. So this means the drought is going to continue through next year.

The bill before you does not violate the Endangered Species Act or the biological opinions, or include any operational mandates for the agencies. The bill accomplishes the dual goals of maximizing water supplies and protecting the environment. To accomplish these goals, the bill’s short-term provisions include increased operational flexibility to deal with the drought right now. And the long-term provisions invest in infrastructure and environmental restoration throughout the West. For the long term, the provisions reshape how the federal government assists states in coping with the drought. [NOTE: Numerous conservation groups disagree, warning the bill will “undermine” ESA protections in the Delta and set a “damaging precedent” nationally.]

The bill’s short-term provisions do not contain mandates. Rather, they provide that agencies base water operations on science, not intuition or guesswork. The bill provides for more operational flexibility in the two big conveyance systems. For example, the short-term provisions allow for increased pumping during winter storms to capture peak flows, and it eliminates the automatic so-called payback of water supply so that agencies can keep the water they gain from the winter storms. [NOTE: Current water operations under the ESA are based on sound science. They were vetted by the National Academy of Sciences in 2010, at Feinstein’s request, and are subject to annual science review by the Delta Stewardship Council.]

We’ve worked with relevant state and federal agencies for two years now to make sure this bill can produce real water in a manner consistent with the ESA and biological opinions. To remove any doubt, we included a simple, clear savings clause to make it crystal clear that the bill is consistent with environmental laws and the biological opinions. [NOTE: Even so, the bill orders changes in the biological opinions in several ways, such as by requiring more Delta water export pumping during storms.]

Louis Torres walks though his front yard, left unlandscaped to keep water use to a minimum, in Irvine, Calif. With California in its fifth year of drought, senators are considering a drought bill, Senate Bill 2533, introduced by Sen. Dianne Feinstein. (Jae C. Hong. AP)

Louis Torres walks though his front yard, left unlandscaped to keep water use to a minimum, in Irvine, Calif. With California in its fifth year of drought, senators are considering a drought bill, Senate Bill 2533, introduced by Sen. Dianne Feinstein. (Jae C. Hong. AP)

Estevan Lopez, commissioner, U.S. Bureau of Reclamation:

The department has testified on a prior version of the bill [S. 1894], and we are happy the senator and her staff have worked very close with us to address technical issues and refine the bill. This collaborative process has produced a good result and we believe the bill before the subcommittee today would improve the water supply situation in California while being protective of the environment, endangered species and the very important salmon fishery that migrates through the Sacramento-San Joaquin Delta. [NOTE: Despite these comments, Lopez warns in written testimony that “there is little, if any, operational flexibility remaining in the biological opinions beyond that already being exercised.” He fears Reclamation will be sued if it carries out the changes proposed in the bill, and says this “could hamper the flexibility we are currently utilizing under the biological opinions to maximize water deliveries.” He urges Congress to prepare a “crystal clear legislative history … to minimize litigation.”]

I know there are some elements of the bill that have created concerns for some parties. But on balance, we are confident and comfortable with the measured approach contained in Senate Bill 2533. [NOTE: This is a substantial change in position by the administration since October 8, 2015, when deputy interior secretary Michael Connor expressed many concerns about S. 1894, an earlier version of this bill that is not significantly different.]

Tim Quinn, executive director, Association of California Water Agencies (ACWA):

We believe that this legislation moves the federal government into closer alignment with key California policies. In the near term, S. 2533 requires federal agencies to put a higher weight on water supply as they’re going through their operations. Currently, we don’t think water supply gets nearly enough weight in their considerations.

The bill calls for real-time operation of the system. It’s much more effective than the status quo rules we have now where pumping is determined regardless of the conditions we have in the system. Real-time operation is an order-of-magnitude better way to operate the system. [NOTE: The U.S. Fish and Wildlife Service and National Marine Fisheries Service already practice “real-time” operations to determine the location of sensitive fish such as the delta smelt and winter-run Chinook salmon. This includes weekly – and sometimes daily – trawl-net surveys, rotary screw traps to count migrating fish and even radio-telemetry devices implanted in migrating salmon.]

There are hundreds of thousands of acre-feet of water available under the short-term provisions of Sen. Feinstein’s bill. This is a good down payment on California drought resiliency in the future. ACWA would urge the subcommittee to move the bill forward so we can go and deal with the authors of H.R. 2898 and come up with a combined approach we can send to the White House and get signed. [NOTE: S. 2533, among other things, would amend federal water contracts to guarantee certain water amounts, even in dry years. It’s unclear where this water will come from.]

Dan Keppen, executive director, Family Farm Alliance:

The negative impacts of today’s drought and water shortages have reached staggering levels for our farmers and ranchers, their families and the irrigated agriculture community. Unfortunately, these impacts are driven in part by current regulations triggered by fixed calendar dates or singular operating thresholds. [NOTE: “Fixed calendar dates” refers to one provision in the salmon biological opinion that requires Delta water exports to be reduced starting on April 1 and lasting through May. However, the biological opinion does allow flexibility to adjust pumping as conditions change.]

Such approaches are inflexible and inefficient. Important species distinctions or other relevant factors are often not considered. They stem in part from the fact that Congress has not explicitly directed agencies to be flexible and innovative. So the agencies default to actions that are least likely to get them sued. Thus, the status quo continues. [NOTE: In fact, the agencies work closely together and have shown remarkable flexibility in dealing with complex operating conditions, as deputy interior secretary Michael Connor testified in October.]

Because of El Niño storms this winter, inflow to the Delta is almost three times greater than this time last year. Yet the water pumped has barely increased as compared to last year because of regulatory restrictions. Senate Bill 2533 provides for more flexible, multipurpose management of the Central Valley Project and the Delta. [NOTE: Actually, water exports increased on several occasions in April and May, the period when “fixed calendar dates” were blamed for restricting water deliveries, although they did remain well below wet-year norms.]

We urge you to keep at it. That’s because two separate bills are of absolutely no value to a parched West. What is needed is a single bill that can be enacted by Congress and signed into law by the president.

Laura Ziemer, senior counsel, Trout Unlimited (T.U.):

Section 112 (of S. 2533) grants West-wide authority to construct new storage. While section 112 is primarily aimed at new California storage, T.U. opposes the broad language of section 112. First, T.U. firmly believes that new storage should be evaluated and carried out in a multi-stakeholder, basin-wide process that considers a variety of alternatives. The broad authority in section 112 could undermine such collaborative processes. Second, T.U. strongly opposes raising Shasta Dam because it would inundate even more of the McCloud, Sacramento and Pit rivers. T.U. members value these rivers immensely and oppose any additional harm to them. Section 112 would make it easier to raise Shasta Dam. [NOTE: The McCloud River is also protected as a state Wild and Heritage Trout stream under state law.]

Title 3 (of S. 2533) legislates some sets of water users as higher priority than others, which seems likely to fuel more litigation and conflict rather than moving toward lasting solutions. T.U. is concerned this title could interfere with Reclamation’s ability to manage the Central Valley Project to meet the needs of other water users and communities that depend on fisheries. Legislatively designating some sets of water users as higher priorities than others seems likely to perpetuate … water wars and to fuel more litigation and conflict. While the debate centers on California, many sport and commercial fishing businesses along the length of the Pacific coast are concerned that actions taken in the Central Valley may adversely impact fisheries in their states. [NOTE: This includes at least 200 fishing groups and businesses in four states that oppose the bill, noting Central Valley salmon provide 60 percent of the commercial salmon catch in Oregon].

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