There's a conflict of interest, he said, because the agencies are in charge of both selling off delta water and acting as the stewards of the estuary, a natural resource owned by everyone.
Then there's the underlying problem of the government having sold off contracts for more water than it could actually deliver, a point Porgans highlighted in his notice of intent to sue. In the years following a drought that struck California in the late 1970s, plans were made to expand water storage for the State Water Project but they fell through at the last minute. Unfortunately, the limited capacity didn't slow the sale of water contracts.
From 2001 to 2006 alone, the U.S. Bureau of Reclamation signed more than 170 long-term contracts with water districts around the state, promising to increase significantly water deliveries from the Central Valley Project for the next 25 to 40 years.
"Basically, they oversold the project," said Zeke Grader, executive director of the Pacific Coast Federation of Fishermen's Associations. "We had all these contracts to deliver all this water, but nobody looked to see how much water there was. More importantly, they didn't look at the minimums that would be needed to protect the delta."
"The shortages are inherent in the project," Porgans said. A court opinion issued by California's third appellate district court in 2000, plucked from his database, underscores this point. "DWR forthrightly admits that 'the State Water Project (SWP) does not have the storage facilities, delivery capabilities, or the water supplies necessary to deliver full amounts of entitlement water,'" Judge Cecily Bond noted, citing a DWR bulletin. "There is then no question that the SWP cannot deliver all the water to which contractors are entitled under the original contracts. It does not appear that SWP has ever had that ability."
Grader puts the blame directly on the water districts. The growers, he said, are "innocent third parties affected by the actions of water districts that should've known better" because the water contracts specified from the beginning that there would be less water available during times of water shortage.
"We have nothing but empathy for farm workers who are unemployed," said Barbara Barrigan-Parrilla, executive director of Restore the Delta, a 501(c)3 nonprofit representing delta farmers, fishermen, and environmentalists. "But their leadership told them, go ahead and do it. We'll get you the water."
Farmers have organized rallies and marches to protest the water cutbacks, angrily putting the endangered delta smelt at the front and center of its campaign. A band of farmers traveled up to San Francisco in recent months, chanting "turn on the pumps!" outside Nancy Pelosi's San Francisco Federal Building office.
Rep. Devin Nunes, a Republican who represents Tulare County and parts of Fresno County, unsuccessfully tried to convince Congress to waive Endangered Species Act requirements to forego protection of the delta smelt and restore irrigation for struggling farmers. (Nunes even attended a Congressional hearing toting a goldfish bowl containing minnows to play up the fish-vs.-families mummery.) The Latino Water Coalition has been particularly vocal, getting airtime on Fox News and publicly appearing with Gov. Schwarzenegger to call for construction of new dams and a canal to ensure a more reliable water supply.
Carter, the environmentalist watching it all unfold from Fresno, shakes his head at the display. If their campaign is successful, he told us, the state will wind up embarking on expensive infrastructure projects that serve an agribusiness agenda at Northern California's expense. "There's a sense of entitlement down here," he said.
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