Feinstein Drought Bill: The Right Approach, but the Language Must Reflect the Intent

This week, Senators Feinstein and Boxer of California and Wyden and Merkley of Oregon introduced a bill in the U.S. Senate designed “to help California and Oregon farmers, businesses and communities suffering from historic drought conditions.”

NRDC deeply appreciates these Senators recognizing the severity of the drought impacting California and other parts of the West and their recognition that it is lack of rain and snow, and not environmental protections that is causing the drought. We also applaud the stated goal of seeking to “bring us together to address this crisis, rather than divide us.”

There’s no question that Californians are all facing hardships due to the drought – water strapped communities, farmers, cities, and our natural environment are all suffering – and we need to come together to effectively address it.  Advancing $300 million in emergency drought relief funding, which the new bill proposes to do, would go a long way to help different sectors cope with these challenges and better prepare for future droughts.

NRDC is also pleased that the intent of this bill is to respect and comply with federal and state laws – unlike its destructive House counterpart, H.R. 3964, introduced last week. However, there are at least two provisions of the current draft that do not live up to this intent, and threaten to override existing laws and requirements protecting the health of the San Francisco Bay-Delta. We encourage the authors to clarify those provisions to ensure that the bill text is consistent with that intent before moving the bill forward. We deserve a bill that meets the needs of both Northern and Southern California and both farmers and fishermen.

Protections for native fish in the Bay-Delta estuary protect thousands of fishing jobs and communities in California, as well as protecting water quality for delta farmers.  That is why these fishing and farming communities support protections for salmon and other endangered fish.  Two provisions in the bill appear to be inconsistent with existing safeguards for endangered salmon and steelhead – and the fishing jobs that depend on healthy salmon runs.  These provisions are also unnecessary, as the existing protections for salmon and other native fish in the Bay-Delta are already substantially weaker in dry years, and include specific provisions to deal with droughts and multiple dry years.

For example, there’s a provision of the bill (section 103(b)(4)) that would lock in a particular ratio of how much of the San Joaquin River’s flow can be diverted by massive pumps in April and May, when salmon and steelhead are migrating down the river to the ocean.  In a critical dry year like this one, the existing protections allow the massive pumps to divert all of the water flowing down the San Joaquin River (a 1:1 ratio of inflow to exports).  However, the ratio increases to better protect migrating salmon from being pulled into the pumps as hydrology improves; for example, the ratio is 2:1 in a “dry” year as opposed to a “critically dry” year.  If there’s one fact that we can count on in this drought, it is that the weather will change at some point. 

Just this past weekend, we received heavy rains as a result of the “Pineapple Express” moving through the system, causing the State Water Board to quickly modify an urgency drought order that it had issued a week earlier.  We cannot predict what conditions will be like in April and May, which is why we need to have the flexibility provided in existing law for salmon protections to vary to reflect what’s happening in real time, on the ground.

By locking in the lowest ratio for transfers and exchanges, the bill risks exposing threatened and endangered salmon to unacceptably high impacts at the pumps, or shifting the burden of complying with those protections away from wealthier water users who can afford to buy more expensive water on the market this year, at the expense of everyone else, who will have to pump less to compensate for the higher level of pumping afforded transfers and exchanges. 

The bill’s language could also limit use of some of the drought exceptions in the existing biological opinions, which set minimum pumping levels for health and safety purposes, even if that exceeds the 1:1 ratio in a critically dry year.  This provision can be easily fixed by allowing the ratio to change if the rains and snow come, and we’re all in a little better position to weather the drought.

Another provision (section 103(b)3(B)) of the bill directs the extent to which tributaries of the San Joaquin River that feed the Delta can flow backwards due to the enormous influence of the federal and state pumps that export water south.  Those pumps redirect the flow of the Delta and pull millions of salmon and other fish to their death each year. By mandating that those Old and Middle River flows be managed a specific way, the bill could exclude protections for a whole host of native fish from impacts of the pumps; protections that are required under a biological opinion for threatened and endangered salmon, steelhead and sturgeon.  It could also be read by some to exempt the federal pumps from complying with those state and federal protections, and shifting compliance to the state pumps alone. In that situation, this exemption would benefit recipients of the Central Valley Project water (mostly agricultural users) at the expense of State Water Project users (mostly cities and towns).  This provision should be clarified to state that the federal agencies should comply with all Old and Middle River flow requirements, including those that protect our native salmon. 

Other provisions of the bill could adversely affect California’s wildlife refuges, which millions of ducks and other waterfowl depend on.  Widespread drought conditions are likely to have devastating impacts on California’s waterfowl and fisheries, as well as farmers, cities, and rural communities, and we need to take care not to exacerbate the effects of the drought on our native wildlife, and the communities and jobs that depend on them. 

As California’s Natural Resources Secretary John Laird said earlier this week, we need “common sense solutions to our drought crisis that don't pit Californians against each other.”  With a few changes, we hope that the Senate bill can help get us there.