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."
Regardless, those changes dramatically undercut the effectiveness of the water-for-fish program. "The way this has been interpreted, it's as if this piece of the statute has never been enacted," says the Environmental Defense Fund's Cynthia Koehler. "It's as if Congress has issued a provision that is absolutely meaningless.
Another attempt at a long-term deal, called CalFed, arose out of the Bay-Delta Accord -- and also quickly got bogged down in endless meetings, studies and arguments. And though the majority of the rivers' annual flow into the Delta was still allowed to travel onward to San Francisco Bay, the Delta pumps were being steadily cranked up. In 2005, the federal and state water projects pumped 6.3 million acre-feet of water from the Delta -- a new record. It was a high-precipitation year, but the increase in pumping showed the continuing power of the farmers and city water bosses.
At the same time, the fish in the Delta were faring worse than ever. New additions to the endangered species list made for a grim menagerie of piscatorial ruin. In 1993, Delta smelt were designated threatened. Winter-run chinook numbers deteriorated so much that in 1994, the species' status was changed from threatened to endangered. In 1998, Central Valley steelhead trout were declared threatened; in 1999, they were joined by spring-run chinook and Sacramento splittail.
By 2005, it was clear that those fish -- and a broader suite of Delta fish, including longfin smelt, striped bass and threadfin shad -- were circling the drain.
Finally, in August 2007, environmentalists won a round in Judge Wanger's courtroom. In a lawsuit filed by the Natural Resources Defense Council, the judge threw out a federal "biological opinion" written under the Bush administration that allowed further increases in pumping. Wanger's ruling substantially cut back the amount of water that farms and cities could pump from the Delta -- and was immediately compounded by a serious drought.
Last year, the state and federal water projects pumped only 3.7 million acre-feet from the Delta -- 40 percent less than in 2005. The Westlands farmers bore the brunt of the cutbacks, receiving just 10 percent of the amount in their contracts. They replaced some of the lost water by pumping groundwater, and bought emergency water from elsewhere, but were still forced to fallow about a quarter of the land in the district. According to new estimates produced by researchers at the University of California-Davis and the University of the Pacific, roughly a quarter-million acres were fallowed throughout the San Joaquin Valley last year, causing around $350 million in lost farm revenue. Such losses will likely get worse not only because of increasing competition for water, but also due to more frequent -- and severe -- droughts as the climate warms.
"We're facing the economic meltdown of a huge swath at the center of California," says Peltier. All this has only hardened the district's position: "We've got to defend ourselves, and protect ourselves."
Meanwhile, the political landscape has shifted again, but the battle formations look familiar. David Hayes, Obama's deputy secretary of Interior, served as Babbitt's lieutenant in the 1990s; for many farmers, he was the primary instrument of what they view as the Clinton administration's attempt to destroy them. And Westlands has reinforced its top leadership with veterans of the Bush administration, including not only Peltier, who is now chief deputy general manager of the district, but also Craig Manson, who is now Westland's chief lawyer. Julie MacDonald -- who resigned from the Interior Department in 2007 amid scandals over how she overruled many recommendations of the agency's own scientists -- now serves as a consultant to Westlands.
Faced with the massive cutbacks caused by the drought and the court-ordered endangered species restrictions, Peltier and some other irrigation district bosses have taken to reciting Babbitt's "a deal is a deal" promise like a bitter mantra. In the years after the Bay-Delta Accord, and particularly after Judge Wanger's 2007 ruling to protect salmon and smelt, "lo and behold, the water contractors started losing more water," says Peltier. "Babbitt didn't say, 'You're not going to lose any more water under the Accord.' He said, 'You're not going to lose any more water, period.' "
Babbitt won't argue that a deal is anything but a deal. But he says that particular deal is, by its own terms, a relic in the receding past. "The Accord had a limited life," says Babbitt. "I don't think it's reasonable to go back and pick out any particular language from an accord that expired more than a decade ago."