Acting at the request of Beverly Hills billionaire and Kern County water baron Stewart Resnick, U.S. Sen. Dianne Feinstein is seeking a high-level scientific review of new endangered-species permits that farmers and others blame for water shortages.
The Sept. 11 request to two members of President Barack Obama's Cabinet carries striking parallels to a 2001 gambit, reportedly initiated by former Vice President Dick Cheney, to seek a similar review in hopes of relieving pressure on water supplies for farmers in the Klamath River basin. That review sowed initial doubt about the environmental permits on the Klamath and led to a temporary, and controversial, increase in water supplies.
Critics say Resnick is trying to use the science review process to expose potential flaws that can be used to challenge the Delta permits, known as "biological opinions," in court, or the court of public opinion, as part of a campaign to loosen permit conditions and increase the flow of Delta water to San Joaquin Valley farmers.
"Part of what he's asking is questions that will give him leverage to overturn the biological opinions," said Glen Spain, northwest regional director for the Pacific Coast Federation of Fishermen's Association, a commercial salmon group. "We're not afraid of a science review. But you have to ask the questions that have to be asked but never have been answered — how much water do we have to leave in the Delta, not how much water do we take out."
The request, which follows the Obama administration's refusal to rewrite the two biological opinions that regulate water deliveries from the Delta, specifically tells Cabinet secretaries of Resnick's desire to complete an initial study within six months and encloses his team's ideas on how a series of three studies could be designed.
In addition to being one of the state's most influential individual farmers, Resnick is a major campaign contributor and owns the largest share of the Kern Water Bank, an underground storage facility that the state Department of Water Resources turned over to Resnick and other Kern County water interests in the mid-1990s.
Resnick has a huge stake in the outcome of numerous lawsuits swirling over environmental regulations in the Delta. One group that has filed some of those lawsuits, the Coalition for a Sustainable Delta, is housed in Resnick's Bakersfield offices.
"He's an individual with very deep ties to a number of politicians, and obviously he's using those connections to get something he wants," said Dave Levinthal, a spokesman for the Center of Responsive Politics, which monitors money in politics. "It's a lot easier for you to do what's being done here because you have status, and you've purchased that status."
In a letter forwarded by Feinstein to the Obama administration, Resnick accuses the agencies of using "sloppy science" to inappropriately attribute the Delta's environmental problems to state and federal water projects.
"I believe that the (National Research Council) is the only body that has the reputation, credibility and expertise to conduct a truly independent science review in the requisite time frame," Resnick wrote.
The research council's reputation for credibility, rigor, integrity and independence is hardly in question, but several experts raised concerns about the advisability of a research council review.
"It's a completely reasonable thing to do, but we've done it," said Bruce Herbold, a fisheries biologist with the U.S. Environmental Protection Agency, who was on a panel of scientists that reviewed the Delta smelt permit issued in December.
Convening another science panel would either take Delta experts away from important ongoing work or would take a long time to bring outside scientists up to speed on a highly complex problem, Herbold said.
The new Delta permits were issued last December and in June after previous versions were invalidated by a federal court because they failed to protect Delta smelt, salmon and other fish from extinction.
Despite claims to the contrary, those permits have had relatively little impact this year, having cost water users several hundred thousand acre-feet of water in a year when their overall supply is down more than 1 million acre-feet.
The bigger problem this year is a run of three dry years. Still, the permits will cut deeper into water supplies in average years and wet years and will, over the long term, substantially reduce water supplies to California's farms and cities.
A panel of the National Research Council would likely hold the permits to a higher standard than is required by endangered species laws, something farmers say is a good idea given the potential economic impact they carry.
Endangered-species laws require the "best available" science be used, while a research council review could demand more certainty in any conclusions that are reached.
"If every decision made under the Endangered Species Act had to withstand that rigorous level of review, there would be no decisions under the Endangered Species Act," said J.B. Ruhl, a Florida State University law professor who was part of the research council committee that studied the Klamath permits.
"The Endangered Species Act would grind to a complete halt," he added.
Before issuing the permits in December and in June, federal agency managers went beyond the law's requirements by seeking outside peer reviews, at least in part because of the certainty that any decision they reached would be challenged in court.
Like the conflict in the Delta, the Klamath was the scene of massive farmer protests in the early 2000s after endangered species permits for salmon and suckers cut into farmers' water supplies by requiring, on one hand, that water be kept in storage to benefit one kind of fish and, on the other, that river flows be increased for other kinds of fish. Either of those requirements can affect water supply, but in the Klamath and in the Delta both of them are in play, further cutting into how much water goes to farms.
Lacking options to get around the Klamath permits' conditions and increase water deliveries to farms, Cheney opted in 2001 to get an outside scientific review, The Washington Post reported six years later.
It paid off in increased farm deliveries in 2002.
In the Klamath, the research council made an initial finding in 2002 that the regulations were too focused on the level of river flows, a conclusion that water managers interpreted to mean they could reduce river flows further. That decision was blamed for a salmon kill-off later that year.
"The Bureau of Reclamation did not faithfully apply ... the NRC's conclusions," Ruhl said.
Courts have since been running the river.
"The genius of the Klamath thing was the way they asked the questions," said Jeff Mount, a UC Davis geologist who also was on the NRC committee. "Someone who is clever can design the questions in a way they can get the answer they're looking for, or that they're hoping for."
"I hate it that I feel like we were manipulated for political reasons," Mount said, adding that the panel's final report was comprehensive.
Mount and others praised the NRC's independence, but he said a study that relied on scientists not familiar with the Delta would take too long.
A critical scientific review could find flaws, but there is little opportunity in the Delta for "advocacy science" to creep into permits as it did in the Klamath because Delta science takes place is a more rigorous environment, Mount said"I believe that
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A Feinstein spokesman said there was nothing unusual about forwarding Resnick's concerns and recommendations for a study design because he "has been acting as a spokesman for many of the farmers here."
Feinstein is seeking $750,000 in next year's budget for the study, but she asked Interior Secretary Ken Salazar and Commerce Secretary Gary Locke to begin work on a study now.
"She thinks it's good to have an independent study," said Gil Duran, the Feinstein spokesman. He rejected any comparisons to the Klamath or Cheney's involvement.
The final report on the Klamath by the National Research Council concluded, among other things, that endangered fish could not recover unless regulators broadened their focus to include other environmental threats.
That is exactly the case that many of the Delta's largest water users have been making — that they are bearing the brunt of regulators' rules even though there are plenty of other problems to deal with.
They might be right. The Delta is under assault by many environmental threats.
But the permits acknowledge that water deliveries from the federal Central Valley Project and the state-owned State Water Project are not the sole cause of the Delta's decline. And the Delta smelt permit makes the case that the projects worsen other environmental problems, like pollution and invasive species, by reducing and altering flows.
Still, relatively little attention is paid to upstream water diverters.
The projects cranked about 6 million acre-feet of water a year out of the Delta in a series of record-breaking years recently that coincided with the collapse of fish populations, but about 9 million acre-feet of water is taken out each year before it ever reaches the Delta by San Francisco, the East Bay Municipal Utility District, Sacramento and upstream farm districts, all of which have so far remained unaffected by the Delta's crisis.