BACKED INTO A CORNER?
As of November, Westlands' fighting spirit was still much in evidence. In a barren field on the west side of the district, a yellow sign screamed, "CHANGE the LAWS or we'll CHANGE CONGRESS!" A passing semi tooted its air horn in approval.
Westlands is, somewhat paradoxically, in the most vulnerable class of water users that receive water from the Central Valley Project. During droughts, the project delivers water first to wildlife refuges and to irrigation districts that were formed before the first portions of the project were built in the 1930s. Cities come next, and finally more recently created agricultural districts, such as Westlands. In a wet year, Westlands receives 40 percent of all the water delivered through the Central Valley Project. But in a dry year that percentage can be much less -- in 2008, for example, Westlands' share was only 18 percent.
That vulnerability has shaped the district's dealings with the outside world. "We've had to be more aggressive, politically and legally, than water districts with a firmer supply of water," says Frank Coelho, a farmer who has been on the district's board of directors since 1991. "It's just the nature of trying to survive."
Tom Birmingham is the man charged with defending the district's interests, and pretty much everyone involved in the state's water politics keeps a close eye on his every move. Water bosses like those at the Metropolitan Water District of Southern California, which supplies water to 19 million people in Los Angeles and San Diego, have gradually reached out to environmental groups. But Birmingham is not the type to hold up an olive branch, even though Westlands was careful to keep its name out of Hannity's environmentalist-bashing broadcast.
"Birmingham is devout. He's a believer," says one Westlands farmer. "He's a believer in the idea that farmers on the West Side should be allowed to farm. And a lot of people on the other side of that proposition" -- a reference to critics who say Westlands is a water-guzzling, fish-killing monster -- "would like to see the end of the district."
Birmingham began working as an outside attorney for the district in 1986, after a short stint with the pro-property-rights Pacific Legal Foundation. Fourteen years later he became Westlands' general manager. Birmingham tends not to mince words, and few people are as critical as he is of the effort to save the Delta. "The pumping restrictions have done absolutely no good for the fish," he says. "We've dedicated millions of acre-feet of water per year to protect those species, and they're still declining."
Even though, overall, Delta pumping increased between 1990 and 2005, Westlands has seen the reliability of its water supply erode, thanks to a complicated mix of federal and state pumping and priorities. Before 1993, the pumps could run all year long. Then the smelt was listed, and the window during which Westlands could pump water grew smaller and smaller.
Because that window now limits pumping to only the second half of each year, water users can't take advantage of the extra water available in the Delta at other, wetter times of the year like the winter. "What we want to do," says Birmingham, "is restore the ability of those pumps to operate at capacity year-round."
The quest to re-open the pumping window lies at the heart of Westlands' survival strategy. In search of relief, the district turned to Congressman Nunes and Sen. DeMint for Endangered Species Act waivers last year. Last March, Westlands -- through a broader group of local irrigation districts -- also sued the federal government to overturn the smelt biological opinion. Birmingham is particularly critical of the science behind the opinion, and says that a host of other problems, including pesticide runoff, invasive fish and high levels of ammonia from urban waste-treatment plants, are responsible for the Delta fisheries collapse. That case is still working its way through court, but in December, Westlands and the Water Authority asked Judge Wanger for an injunction to prohibit the pumping restrictions this year -- a motion that the judge will consider this month.
Yet even as Westlands aggressively challenges the biological opinions, it is one of the main participants in the quiet, ongoing series of negotiations to create a Bay-Delta Conservation Plan. The plan, which emerged in the wake of CALFED's collapse, seems likely to provide at least the raw DNA for the new governance entity mandated by the water package the California Legislature passed in November.
Some environmental groups view that process skeptically. "The environmentalists can sit in the back seat and offer suggestions," says the Planning and Conservation League's Minton, "but they don't have the grip on the steering wheel."
But Ann Hayden, a senior water resource analyst with the Environmental Defense Fund, who represents environmental groups in the process, says that the conservation plan has kept the water users' quest for better water reliability yoked to a meaningful effort to protect the Delta. In "this world of constant litigation, we've actually been able to make quite a bit of progress in the BDCP," she says. "I think we have a promising foundation to work from."
Still, the DeMint amendment and the political wrangling over Endangered Species Act waivers "has created a lot of tension in the BDCP process," she says.
The state's environmental groups are watching to see what happens when Congress returns this month. Sen. Feinstein has been working on several fronts to help Westlands and other water users. Last fall, she requested a review of the smelt biological opinion by the National Academy of Sciences; a preliminary report should be out this spring. The Senate will also consider a bill she introduced that would streamline the federal government's review and approval of water transfers.
Birmingham says that Westlands has not ruled out asking Congress for help in getting a waiver from the Endangered Species Act. "We will pursue every potential remedy," he says. But "not," he is careful to add, "without the express consent of Sen. Dianne Feinstein."