Five years ago, a U.S. Interior Department official outlined the terms of potential legislation to resolve a lingering battle over badly drained farmland in the Westlands Water District.
Any proposal, he said in a letter to Sen. Dianne Feinstein (D-Calif.), should require Westlands "to permanently retire a minimum of 200,000 acres," prepare a drainage management plan with "measurable environmental objectives" and cap the district's long-term water deliveries at 70% of its existing federal contract.
But the agreement approved last week by the Obama administration and Westlands beats a long retreat from those requirements, prompting cries that a district legendary for its political sway and hardball tactics has once again come out on top.
The amount of land Westlands would retire under the settlement has been cut in half — and the district has already taken most of that acreage out of production.
As with the earlier proposal, drainage responsibilities would shift from the federal government to Westlands. But gone are stipulations that the district develop a comprehensive plan and environmental standards for managing the tainted field drainage.
The deal also raises the proposed cap on Westlands water deliveries to 75% of its contract — or nearly 900,000 acre-feet — while locking in that water entitlement with a new, open-ended contract that doesn't require renewal. The indefinite term would make it easier for Westlands growers to hang onto cheap federal supplies in the future — and sell what they don't need at a handsome profit.
Additionally, the agreement would forgive the $350-million debt Westlands still owes U.S. taxpayers for the district's share of Central Valley Project construction costs, further boosting growers' federal water subsidy.
Long-time Westlands combatants argue that the settlement offers no guarantee that the vexing drainage problem will be fixed. The agreement has only general language saying the district is "legally responsible for the management of drainage water" within its boundaries.
"There are no performance standards," said Kate Poole, an attorney for the Natural Resources Defense Council, an environmental group that intervened on behalf of the U.S. in the prolonged court fight the settlement would end. "So there's no indication that they have to do something more than what's currently happening [with drainage] or that they have to do it by a certain time."
She also questioned why the government would give Westlands a long-term hold on deliveries from the environmentally ailing Sacramento-San Joaquin River Delta.
"It's really inexplicable — given all of the controversy currently in the delta and all of the recognition that we are taking too much water out of it — why at this moment, they would chose to lock in a permanent contract," Poole said. "It doesn't make any sense," she added.
As reclamation commissioner in 2010, Mike Connor wrote the letter to Feinstein. Now deputy Interior secretary, he helped negotiate the settlement, which must still be approved by Congress.
While disputing that the agreement gives away too much, Connor was forthright about the administration's desire to escape the legal liability and mounting financial costs of dealing with the contaminated drain water that flows from Westlands fields.
"We have a settlement that is a very significant financial benefit to the United States and the U.S. taxpayer," he said in an interview.
Congress and the reclamation bureau unwittingly set the stage for the government's predicament when they agreed a half-century ago to extend the Central Valley's big federal irrigation project to the arid west side of the San Joaquin Valley. Growers knew much of the land was badly drained, so the government also agreed to build a master drain that would run north and empty into the delta.
But construction was halted by concerns about costs and delta impacts, so the partially finished drain discharged into ponds at the Kesterson National Wildlife Refuge. When federal biologists in the 1980s discovered the drainage was poisoning waterfowl, Interior closed the drain.
The culprit was selenium, a naturally occurring trace element that washes into Westlands soil from the nearby Coast Range. Concentrated in field drainage, it reached levels toxic to wildlife, causing grotesque birth defects in refuge birds.
With no place to send drain water that is also loaded with crop-damaging mineral salts, growers complained their fields were being ruined. They sued Westlands and Westlands sued the government.
In 2000, a federal appeals court ruled that Interior was legally obligated to provide drainage to the district, but left it up to the department to figure out how. In 2007, the reclamation bureau proposed a $2.7-billion project that went nowhere, followed by years of negotiations.
"This whole issue of drainage in the Westlands district has been a festering sore of California water and environmental policy for over three decades," said Richard Frank, director of the California Environmental Law & Policy Center at UC Davis. "This controversy in all of its manifestations has dragged on for way too long."
Westlands general manager Tom Birmingham, said that if Congress approves the settlement, the district would likely embark on a drainage treatment program similar to one conducted on a much smaller, experimental scale in a nearby irrigation district. That project includes using drain water to grow salt-tolerant crops, changing irrigation practices to reduce the volume of drainage and removing salts and selenium through treatment.
"Under this settlement Westlands will be required to manage drain water within its boundaries and if we fail to do that, our water supply can be cut off," he said. "And that is an obligation that is going to cost hundreds of millions of dollars."
But the U.S. Fish and Wildlife Service and the U.S. Geological Survey have in the past cast doubts on the ability to treat large volumes of drainage without creating environmental problems. Evaporation ponds and reuse fields can attract waterfowl, exposing the birds to dangerous selenium levels. High-tech treatment produces mountains of salts and selenium that must be disposed of.
The best solution, federal scientists have argued, is to simply stop producing the contaminated drainage by taking all of Westlands ill-drained lands out of irrigated agriculture. That would amount to roughly half of the 600,000-acre district.
Under the 2007 proposal, the federal government would have retired about a third of the district — a move that Westlands opposed — and treated drainage from the remaining problem acreage.
The proposal's price tag, which federal officials say would now exceed $3 billion, doomed the project. But the reclamation bureau, still under court order to do something, has in recent years spent roughly $35 million planning drainage services and building a demonstration treatment facility.
At the same time, the agency's budget has shrunk. "So that's the financial piece, to be blunt, [that was] one aspect of a motivation to resolve" the drainage case, Connor said.
As for why the settlement dropped requirements for a management plan and monitoring, Connor said federal and state environmental laws would apply to whatever the district does. He also noted that under the new contract, Westlands deliveries would still be subject to shortages related to drought or environmental restrictions.
Ultimately, Connor said he suspects Westlands will retire more land and find other uses for it, such as the solar farms that are already popping up in parts of the sun-blasted district.
"Treatment facilities are expensive," he said. "Quite frankly, my view is land retirement will exceed that 100,000-acre figure and will likely, at the end of the day, get close to the 200,000, if not exceed that."
The agreement sets a January, 2017 deadline for Congress to enact settlement legislation. In a statement, Feinstein, the key congressional player on California water, said she was reviewing the document but was focused on moving drought legislation.
"My hunch is that the more Congress digs into the details of this, the more controversial the settlement is going to get," Frank said. "And the less are the prospects for a quick and easy congressional ratification."