California Can't Have it All: There's Not Enough Water to Support Farmers, Cities and the Environment
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And so, in 1997, Westlands, together with a broader coalition of water agencies, sued the Clinton administration, demanding that it abandon its recently released proposal for strategically deploying the 800,000 acre-feet to help the fish. The case dragged on, and then in 2001, the farmers gained a powerful ally when Republican George W. Bush became president.
Bush appointed Gale Norton, an oil and gas lawyer from Colorado, as Interior secretary. Bennett Raley, another Coloradan who had long experience as a lawyer for that state's largest irrigation district, became Norton's assistant secretary for water and science. And Peltier -- who had once threatened to do "anything and everything to keep from being harmed" by the law that earmarked 800,000 acre-feet for fish -- became a special assistant to Raley, advising him, as Norton would later officially note, on issues related to the Delta.
Oliver Wanger, a federal district judge in Fresno who was appointed by President George H.W. Bush in 1991, was just then taking up critical questions about how much water the Fish and Wildlife Service actually had to work with to protect salmon. Even within the federal government, that issue had generated considerable antagonism between the Fish and Wildlife Service and the Bureau of Reclamation, the water-supply agency that has traditionally aligned itself closely with irrigation districts. The Bureau argued for a restrictive interpretation of how much water the Fish and Wildlife Service could get -- a position that the Service, in its own analysis, noted was "largely motivated by pressure to increase the (water) allocation to south of Delta agricultural users."
In early December 2001, as a Fish and Wildlife Service supervisor was preparing to appear as a witness before Judge Wanger, Raley called the government's legal team in Sacramento and delivered a message: The Fish and Wildlife supervisor was not to testify; a representative from the Bureau of Reclamation would go instead.
One month after Raley's call, Fish and Wildlife Service biologists watched helplessly from the gallery of Wanger's courtroom as Westlands' general manager, Tom Birmingham, argued for accounting rules that would seriously limit how much water could be used to protect fish. The representative from the Bureau of Reclamation offered little to rebut his argument.
"It was like a bad movie," says one source who was at the hearing. Shortly after that, Judge Wanger ruled in favor of the restrictive interpretation. The next year, Bush's Interior Department unveiled a new policy for how the Fish and Wildlife Service would use the environmental water. According to sources who were involved in that process, both Jason Peltier and Julie MacDonald -- perhaps Bush's most controversial environmental appointee, then an adviser to assistant Interior Secretary Craig Manson and later deputy assistant secretary for fish, wildlife and parks -- provided input. In the new policy, Interior not only incorporated Judge Wanger's restrictive interpretation, as it was legally bound to do, but went even further, increasing the frequency with which the salmon-water account could be "shorted" due to drought -- exactly the conditions when the fish would need that water most.
Asked recently about the sidelining of the Fish and Wildlife Service in the key court hearing, Bennett Raley says that the decision was his alone. "Jason (Peltier) was involved to a significant extent in some of the Bay-Delta discussions," he says, "but I was very careful in this decision to not involve him." Peltier also says that he refrained from getting involved in that specific issue. Asked whether he provided input on the Interior policy issued after Judge Wanger's ruling, he says, "I can't recall," adding, "I'm sure I was consistent with my position in just staying away."