The following is an excerpt from A Force for Nature: The Story of NRDC and the Fight to Save Our Planet by John H. Adams and Patricia Adams, with George Black (Chronicle Books, 2010). Since its inception in 1970, the Natural Resources Defense Council has grown to include 1.3 million members and activists. A Force for Nature chronicles the organization’s challenges and victories in safeguarding our planet throughout the past four decades. This excerpt is from Chapter 20, “The Rule of Law.”
The San Joaquin is the second longest river in California. It rises among the snowfields of the Sierra Nevada, close to Yosemite National Park, and joins the Sacramento River 350 miles downstream to form the largest estuary on the West Coast. John Muir, founder of the Sierra Club, likened the estuary, or delta, with its immense oak forests and wetlands and its teeming wildlife, to the Garden of Eden.
Yet by the late 20th century, Californians were barely aware of the San Joaquin, for it no longer existed as a real river in any meaningful sense. The problems began with a huge hydroelectric dam on the upper river in the early 1900s. The wholesale re-engineering of the San Joaquin got under way when the U.S. Bureau of Reclamation decided “surplus water” from the river should be exported to other areas as part of the massive Central Valley Project, launched in 1933 to transform arid areas into productive agricultural land and shield California’s farmers from economic ruin in the aftermath of the Great Depression. Starting in 1940, the bureau built major dams on both the Sacramento and the San Joaquin. It was the 319-foot-high Friant Dam near Fresno that ripped the heart out of the San Joaquin.
The dam rerouted 95 percent of the flow of the river into two big irrigation channels, watering about a million acres of cotton, corn, fruit, almonds, alfalfa, wheat and other cropland up and down the eastern slopes of the San Joaquin Valley. Fresno County became the richest agricultural county in the United States, and the San Joaquin became, as the Amicus Journal once put it, “both tub and toilet” for California’s agribusiness boom. Below the Friant Dam, more than 60 miles of the river ran bone-dry in all but the wettest years. Flows that did emerge farther downstream were often heavily polluted by agricultural runoff and municipal sewage outflows.
Meanwhile, the Sacramento-San Joaquin Delta had also been grossly deformed. Giant pumps installed in the 1950s and 1960s reversed the flow of the lower reaches of both rivers to channel water southward to the California Aqueduct. Although the delta provides water for 23 million people, including part of the drinking water supply for almost two-thirds of California’s population, it was so polluted that tens of millions of dollars had to be spent each year on purification plants. The loss of the freshwater inflow from the San Joaquin had wiped out one of the richest salmon fisheries on the West Coast. Old-timers can still remember when the sound of thousands of Chinook salmon thrashing their way upstream at the site of the Friant Dam would keep people awake at night.
In 1988, the original water contracts at the Friant Dam came up for renewal, and the U.S. Bureau of Reclamation, which managed the dam and the diversions, said the contracts would be renewed automatically, and on the same terms as before: Every drop of water from the upper river would go to the same powerful contractors, primarily farmers on the east side of the San Joaquin Valley. Hal Candee, who had been hired to work in NRDC’s San Francisco office a few years earlier, thought differently. Marc Reisner, who sadly died of cancer in 2000, had provided the blueprint for Hal’s work in his classic book, Cadillac Desert. “Marc’s argument was that the West was a heavily subsidized and tremendously expensive ‘hydraulic society,’ based on dependence on dams and aqueducts that destroy some of America’s greatest natural resources,” Hal says. “An advantage of not growing up in California was that I could not accept that just because the San Joaquin had been dried up for 40 years, it had to stay that way.”
Many environmentalists thought we were crazy to fight for the river, saying it was impossible to turn back so much history. Farmers and valley towns had depended on this water for more than 40 years and would not willingly give it up. NRDC’s response was that it did not have to be a zero-sum game. The responsibility of government agencies was to serve the public interest. How could that be squared with an arrangement that benefited only one party? If the San Joaquin could be managed more efficiently — if, for example, just 10 percent of the water could be saved through conservation measures — perhaps you could have prosperous farms and a healthy river. That had been done for other important California rivers, such as the Tuolumne, the Stanislaus and the Merced, all of which still maintained year-round flows and returning salmon, albeit in reduced numbers.
The first step in NRDC v. Rodgers was a familiar one for us: File a National Environmental Policy Act (NEPA) suit in district court demanding an environmental impact assessment — including an examination of alternative ways of meeting the farmers’ demand for water — before the new contracts were issued. This time, working with a coalition of 14 groups that contained sport and commercial fishermen as well as environmentalists, we added some new twists. In 1992, we amended our complaint to charge that the Bureau of Reclamation was failing to comply with California’s Fish and Game Code, which said dam operators had to release sufficient water to sustain healthy fish populations farther downstream. This was in line with a recent Supreme Court ruling that if a federal agency planned a water diversion, it had to obey state laws.
The Department of the Interior, of which the Bureau of Reclamation is part, retorted that it was exempt from this ruling and had no obligations to the fish. The farmers’ right to the river was nonnegotiable, it asserted, and the bureau had no real role in the matter. It was merely acting as a “trustee” for the water.
These were the opening shots in a two-decade battle to restore the San Joaquin, and the dispute over federal versus state authority became the crux of the case.
Looking back at it, it was the kind of case that only NRDC, of all environmental groups, could possibly have taken on. It involved courtroom skills and negotiating savvy, legislative action and lobbying in Sacramento and Washington, D.C., and the ability to build and hold together a large and diverse coalition. This meant creating a stellar team to work on the case over its 20-year life span, and that’s what we did, with people like senior scientist and San Joaquin River project manager Monty Schmitt, senior policy analyst Barry Nelson, and attorneys Jared Huffman (now a California state assemblyman), Kate Poole (2008 California Lawyer of the Year) and Michael Wall, head of our San Francisco litigation team.
Outside supporters, too, such as our pro bono counsel Phil Atkins-Pattenson of Sheppard Mullin in San Francisco, play an essential role in a case of this complexity. And we needed serious financial backing to be able to follow through on a 20-year commitment. In this instance, that came from people like George A. Miller, a retired businessman and philanthropist who found it incomprehensible that public water was being given away for a pittance for a private purpose. The Bureau of Reclamation was selling irrigators an acre-foot of water — enough to meet the needs of a family of five for a year — for just $3.
By the end of our first decade of work on the San Joaquin, we had won a series of court rulings culminating in a unanimous decision in 1998 by the U.S. Court of Appeals for the Ninth Circuit. The judges agreed with all of our main arguments, ruling that the Bureau of Reclamation was subject to California’s Fish and Game Code, and that its renewal of contracts for water from the Friant Dam was a violation of the Endangered Species Act. The contracts were rescinded. The Friant water districts tried to appeal this ruling to the Supreme Court, but their request was denied.
Court rulings do not end a case like this, however — they simply send it to the next stage, which is the complex technical negotiation to determine how the decision is to be implemented in practice. How much water would have to be released from the dam in order to restore salmon to the river? Would that amount be consistent with federal law? At this point, Congress had also gotten involved in the dispute, passing the 1992 Central Valley Project Improvement Act. The act ordered the Bureau of Reclamation to remedy the environmental harm caused by the New Deal-era project and stated that the preservation of fish and wildlife was no less important than the provision of water for irrigation. However, the act stipulated that any new federal plan to release water from the Friant Dam had to be “reasonable, prudent and feasible.” What did that mean for this case, which had been brought under state law, not federal law?
The negotiations between NRDC and the Friant water users dragged on for four years and ultimately involved a court-appointed mediator. Both sides commissioned expert studies to estimate how much water it would take to restore the salmon. Our view was that any release schedule had to be flexible. The purpose of the exercise was to restore salmon to the river, so if the amount of water released turned out to be insufficient to accomplish that, it was logical to us that the releases would have to be increased. This reflected a doctrine known as “adaptive management.” But all of our proposals — and even those of the mediator — proved unacceptable to the Friant water users, who said our plan would dry up the Central Valley. The talks collapsed.
The case then returned to the courts, and Senior District Judge Lawrence Karlton did the judicial equivalent of banging our heads together. He declared flatly that the operation of the dam was illegal and that all the river’s “historic fisheries” had to be restored. If we failed to agree on how this could be accomplished, he said, the court would impose its own solution through a “remedies trial.” He would prefer us to solve the problem with a scalpel, he said, but if necessary he would do so with a meat cleaver. He scheduled the historic trial for Valentine’s Day — Feb. 14, 2006.
As that date approached, the case suddenly became more politically complicated when California Democratic Senator Dianne Feinstein intervened personally in the dispute. The Friant water users had approached her with a plan they maintained would protect their needs while leaving enough to satisfy the environmentalists, and she prepared to introduce legislation that would have resulted in the termination of our lawsuit.
In September 2005, Hal got an urgent call from Feinstein’s staff, who said she was about to introduce a rider to a Senate appropriations bill. “It will end your case, but it will protect the river,” they said.
“Can I see the bill?” Hal asked.
“You have one hour.”
Hal was greatly disturbed by what he read. He called back and told the senator’s office, “This rider would override both federal law and the California state constitution.”
“That’s not our intent,” he was assured.
“But that’s what will happen.”
The bill was put off a month, and in the end Feinstein agreed to set aside her rider if we would go back to the negotiating table with the farmers. We agreed, but on two conditions: First, the settlement had to be driven by the parties to the case, not by elected officials; and second, none of the parties would “go behind or around” the negotiations with any new legislation. The talks had to be held in good faith. Feinstein agreed. We soon went back to the court with the water users and the government and promised that this time the talks had a very good chance of success. The judge agreed to postpone the trial.
“We could have had a complete victory in court, but then there would have been winners and losers,” Hal says. “Asking the farmers to give up a percentage of their water was no small deal. We needed to find a way to mitigate some of their losses. We wanted to take the long view and find a win-win solution.”
It took another year of negotiations and technical studies, but in the end we did just that. The details are too complicated to get into here, but they involved a series of proven, cost-effective techniques such as recharging groundwater, more efficient management of the Friant Dam, conservation, the integrated or “conjunctive” use of groundwater and surface water, and recapturing water downstream and returning it to the farmers. These measures, combined with a negotiated restoration plan, were enough to satisfy both sides, and in September 2006, we announced our landmark agreement, overcoming decades of disputes and bitterness. It set in motion one of the largest and most important river restoration projects in the nation’s history. It would end up costing $800 million, but this would be split between the federal and state governments and the water users. Our economic analyses predicted that some of the cost would be recouped in time by income from increased recreational use of the river, healthier fisheries, and economic benefits to the Sacramento-San Joaquin Delta.
On March 30, 2009, after two more years of tweaking the legislative details of the settlement in Congress, President Obama signed the San Joaquin River Restoration Act into law. Six months later, on Oct. 1, engineers opened the gates at the Friant Dam, and for the first time in more than 60 years, water flowed down the dried-up channel of the San Joaquin — a small, symbolic step toward the restoration of one of America’s great rivers.
Reprinted with permission from A Force for Nature: The Story of NRDC and the Fight to Save Our Planet, published by Chronicle Books, 2010.