All good conservatives believe 1) the federal government should be kept out of our lives as much as possible, 2) states should be allowed to conduct their own affairs and 3) private property rights, above all, are sacrosanct.
Funny, then that the San Joaquin Valley’s three most conservative members of Congress, Reps. Devin Nunes (R–Visalia), Jeff Denham (R–Atwater) and House Majority Whip Kevin McCarthy (R–Bakersfield), are sponsoring a bill, HR 1837, the San Joaquin Valley Water Reliability Act, that rides roughshod over all three of those conservative principles and exposes them as hypocrites.
Nunes, who represents the southeastern corner of the Valley from Kern County stretching north into Fresno County (including parts of the city of Fresno and Clovis), supposedly authored the bill and got Denham and McCarthy to sign on as cosponsors. I write “supposedly authored” because it is obvious the real authors of the dense 38-page bill are lobbyists or lawyers or consultants for the Westlands Water District and Kern County water interests, including the Kern County Water Agency and the Kern Water Bank, which is controlled by Beverly Hills billionaire Stewart Resnick, who owns 200,000 acres of farmland in western Kern and Kings counties.
This is sort of like when George W. Bush took office in 2001 and Vice President Dick Cheney promptly invited the oil company officials and lobbyists into the White House and asked them to draft sweetheart legislation for the oil industry. Nunes, of course, has not revealed the true authors.
Nunes’ bill is opposed by the Obama administration, California’s two U.S. Senators, Dianne Feinstein and Barbara Boxer, the California Democratic Congressional delegation, virtually all environmental groups and fishing organizations and all north of the Delta farming interests.
Critics say the bill would do the following: 1) pre-empt state water law and eliminate the 100-year-old section of the Reclamation Law that requires the U.S. Bureau of Reclamation to defer to state water law, 2) undo a settlement on restoration of the San Joaquin River that stretches back to a 1988 environmental lawsuit (ironically, Denham’s Republican predecessor in Congress, George Radanovich, was a signatory to that Congressionally brokered settlement) and 3) put junior water rights holder Westlands Water District at the head of the bucket line for available Delta water supplies ahead of senior water rights holders in the Delta and Sacramento Valley regions.
Bay Area Congressman George Miller (D–Martinez), who has been a thorn in the side of Westlands for decades, participated in a June 13 hearing on the Nunes bill held by the House Subcommittee on Water and Power Resources although he is not a subcommittee member.
During the hearing, he questioned John Herrick, legal counsel for the South Delta Water Agency, asking if the Nunes bill would result in a “taking” under the Fifth Amendment of the U.S. Constitution, which forbids the federal government from seizing private property without just compensation to the property owner.
Herrick had explained that the Nunes bill would prevent the State Water Resources Control Board from taking water from federal Central Valley Project water districts with junior rights (including Westlands) to help solve the Delta’s fishery problems. But the state water board, still under a duty to protect the Delta, could then seize more water from senior water rights holders north of the Delta, thus violating the Fifth Amendment taking clause.
“It would appear to me that you have a [Fifth Amendment] taking,” Miller said at the hearing. Noting that if water were taken from landholders in the Sacramento Valley, they would have to idle some land and their property value would decline, Miller added, “I don’t know how you grow rice without water.” (Miller’s comments at the hearing are on YouTube and available at the subcommittee Web site.)
“I find it rather ironic that some of the most conservative members of Congress who hate the federal government are now using the federal government as a vehicle to bash private property rights and the value these people have in farms and ranches north of the Delta,” Miller said.
Miller has been joined on this point by two very conservative northern California Republican Congressional members, Tom McClintock (R–Elk Grove), who chairs the subcommittee on water, and Wally Herger (R–Chico), who represents northwestern California. Their constituencies could clearly lose some water under the Nunes bill.
At the conclusion of Miller’s remarks at the June 13 hearing, McClintock, apparently stung by Miller’s contentions, reported, “The chair would assure the gentleman that no legislation will clear this subcommittee that in any way undermines local area of origin water rights as long as the chair has anything to say about it.”
State statutes regarding counties of origin and watershed of origin state that the regions where rivers originate must have all their present and future water needs met before water can be exported out of their watersheds. North State interests have repeatedly said they have given up all the water for export that is available.
Three days after the June 13 subcommittee hearing, Herger issued the following statement:
“After carefully reviewing HR 1837 and discussing it with water users in our area, I have strong concerns that the bill, as currently drafted, would negatively impact Northern California water rights and pre-empt state water law. As I have long stated, California’s area of origin protections are clear and unambiguous―our water needs must be met first before excess water is allowed to flow south.”
Herger said he would work with Nunes and McClintock to resolve concerns over pre-emption of the county of origin statutes (and, by implication, private property rights in water) adding, “However, my primary responsibility in Congress is to the North State, and any legislation designed to address these problems must fully protect and respect Northern California’s superior water rights.”
It now appears that Nunes’ bill will not survive opposition in the Senate from both of California’s senators. However, a statement on Nunes’ official Web site recently posted by his staff warns that “there are many options on the table to gain passage of legislation and that he would be leveraging all of them to aid the San Joaquin Valley. This will undoubtedly keep the bill’s opponents on their toes. House Appropriators have already stripped funding for the San Joaquin River Settlement from the federal budget, a major blow to the plan which is already off schedule and underfunded.”
For the moment, however, Nunes is on the defensive and has not yet issued any clear-cut assurances that his bill will not affect northern California private property rights in water or the area of origin statutes.