No one is more adept at turning crises into opportunities than representatives of special interests in Washington. And there are few better opportunities-in-disguise than the California drought.
Addressing the drought is complicated, technical and politically charged. Billions of dollars in business investments are at stake, so millions are available to push legislators in one direction or another — especially if the key discussions are held behind closed doors.
That's why it's probably a good thing that Sen. Dianne Feinstein (D-Calif.) last week abandoned her effort to craft a drought relief bill in haste and through private conversations with Central Valley Republican members of Congress and lobbyists for well-heeled water users. Many of those parties live to overturn the federal Endangered Species Act and Clean Water Act, which they say deprive Central Valley growers of desperately needed water.
Feinstein's original goal was to reach agreement with the Republicans by Dec. 11, when Congress goes home for the holidays. Her plan now is to move a bill through the GOP-majority 2015 Senate under "regular order," meaning it will be subject to public committee hearings, presumably with testimony from commercial fishers and environmental advocates who complained they were shut out of the earlier talks.
It isn't entirely clear that shifting from closed-door negotiations in a politically split Congress to open discussions in a uniformly Republican Congress will be a positive step. Environmental advocates have their fingers crossed.
"We're not out of the woods," says Doug Obegi, a senior attorney for water issues at the Natural Resources Defense Council. "But regular order does mean that if anything emerges, it will be less bad."
The problem with trying to craft water solutions for California in Washington is that it can't be done without trampling court rulings and state laws and policies that apportion an increasingly scarce resource among increasingly demanding users.
Water experts viewed the precursors to Feinstein's efforts — a GOP bill passed by the House in February and a Senate bill sponsored by Feinstein later in the year — as piecemeal solutions designed to exploit the crisis, not resolve it. Neither measure could create new water supplies, because they don't exist.
"This is not a drought bill for the entire state," says Patricia Schifferle, a water policy expert at Pacific Advocates. "This is about creating winners and losers in a time of shortages."
Any congressional interference in California water regulations could upset a delicate balance between federal authority and long-established state prerogatives to set their own water policies, placing Congress on "risky constitutional ground," says Antonio Rossmann, an expert on water law at UC Berkeley's law school.
Feinstein is well aware of the pitfalls. "Water is one of the most difficult and convoluted subjects that I've ever encountered," she told me last week. "It's driven by water rights law, it's driven by history, it's driven by environmental concerns, it's driven by politics."
Her efforts to quickly complete a bill were aimed at heading off a draconian Republican measure that would have destroyed environmental protections, but couldn't have passed both chambers on Capitol Hill. "Waiving the Endangered Species Act and the Clean Water Act and denying advanced science … isn't going to get us anywhere in the Senate," she said.
Yet the conviction was widely shared that Feinstein's negotiations would have benefited a cadre of wealthy growers by allowing federal officials to limit releases of water into the Sacramento Delta designed to promote environmental and clean water goals and preserve the salmon industry, shifting the water to the growers instead.
Democratic members of Congress from Northern California asserted that the proposed measure "would have eviscerated environmental laws protecting fisheries, California watersheds, local water supplies, and tribal and local economies in order to benefit a few powerful Delta water exporters."
Although full details were never released, a coalition of 34 Indian tribes and environmental organizations wrote Feinstein on Nov. 18 that drafts they had seen showed it would benefit mostly "desert agriculture in the southwestern San Joaquin Valley — not California as a whole."
They're right in pointing the finger at those agricultural users. Almond and pistachio farming in the valley —including growers affiliated with the giant Westlands Water District and nearby Paramount Farms, owned by Beverly Hills billionaires Stewart and Lynda Resnick — is a major factor in unbalanced water allocations statewide. These users hold low-priority water rights, but their crops can't survive a break in supply. They spend lavishly to preserve their water; Westlands' lobbying expenses in Washington have run to roughly $600,000 this year and last.
As my colleague Bettina Boxall reported last month, the parched southwestern valley, dependent on imported water, may be the worst place in California to practice this kind of agriculture. But instead of wise agricultural practices, Westlands has substituted legal actions and lobbying for environmental rollbacks.
The Resnicks have leaned on Feinstein to carry their concerns to government environmental officials. In 2009, Stewart Resnick wrote her to accuse the Interior and Commerce departments of using "sloppy science" to impose environmental restrictions on water allocations to growers and other users, and to demand an "independent science review." Possibly aware that the Resnicks had made $500,000 in political donations over the previous four years, mostly to Democrats, Feinstein passed Resnick's letter on to the agencies' secretaries and endorsed his request. (The National Academy of Sciences later determined, alas, that the restrictions were "scientifically justified.")
That's one reason environmental interests were uneasy about any closed-door discussions Feinstein might hold over the very same water allocations. She bristles at the implication: "All sorts of ulterior motives were being assumed," she said, "and it's simply not true."
Instead, Feinstein said she was simply trying to afford water agencies more "flexibility" to shift allocations between environmental requirements and the needs of users in the most drought-stricken parts of the state. "We are on our way to being a desert state," she said, "and we have to find ways of using water more efficiently." That's true, but only by engaging all stakeholders in an open discussion.
Feinstein also pledged that she "won't be a party" to a bill that overturns the Endangered Species Act or the Clean Water Act, or that disregards the biological science underlying environmental allocations. But both those admirable goals were compromised by her attempt to negotiate a deal and present it as a legislative fait accompli. There's no guarantee that a bill that emerges from a Republican Congress even after public hearings will be, as Obegi put it, "less bad." But at least the mechanisms that produce it will be open for all to see.