SEARCHING FOR THE ZONE OF REASONABLENESS Douglas E. Noll* INTRODUCTION In the fall of 1992, President George Bush signed into law the Cen­ tral Valley Project Improvement Act (CVPIA).\ For the frrst time in the fifty-five year history of the Central Valley Project (CVP), envi­ ronmental water uses were equal with agricultural and municipal uses. 2 To guarantee water for fish and wildlife, the CVPIA allocated 800,000 acre-feet of water annually to the environment. On November 20, 1997, the Bureau of Reclamation (Bureau) issued a final draft of its Administrative Proposal (Proposal) concerning management of the 800,000 acre-feet of water.3 This article examines the Proposal and concludes that it is a reasonable exercise of administrative discretion. I. POINTS OF CONTROVERSY The two principal groups interested in the water allocation issues are the water contractors and the environmental groups. The water contractors are agricultural water districts and municipal water dis­ tricts. These organizations have long-term contracts with the Bureau • Professor of Law; Litigation Partner, Lang, Richert & Patch, P.e., Fresno, Cali­ fornia. The author wishes to acknowledge the comments of Ross Borba, Jr. and Thomas Binningham, Esq. on the draft of this article. The author realizes this article addresses controversial issues in the agricultural and environmental arena. Therefore, any responses are encouraged and welcome. San Joa­ quin Agricultural Law Review fosters the publication of all positions on controversial topics. Submissions may be sent to San Joaquin College of Law, 901 5th Street, Clo­ vis, California 93612-1312, attention: Executive Editor. I The Central Valley Project Improvement Act, PuB. L. No. 102-575, § 3401, 106 Stat. 4706, 4600-4769 (1992). 2 For an overview and general analysis of the Act, see Douglas E. Noll, Analysis of Central Valley Project Improvement Act, 3 SAN JOAQUIN AGRIc. L. REv. 3-34, (1993). 3 The full text of the draft Proposal is downloadable from the Internet: <http:// www.mp.usbr.gov/pub/800kI120.exe>. The Bureau of Reclamation CVPIA website is: <http://www.mp.usbr.gov/cvpia.html>. 59 60 San Joaquin Agricultural Law Review [Vol. 8:59 for project water. They have been represented in discussions by orga­ nizations such as the San Joaquin River Coalition, the Friant Water Users Authority, and the Kings County Farm Bureau.4 The environ­ mental groups have been represented in discussion groups by the Nat­ ural Resources Defense Council in San Francisco and Save San Fran­ cisco Bay.s The interests of the water contractors and the environmentalists have been divergent. Understanding their positions is useful in analyzing the Proposal. Water contractors see the 800,000 acre-foot allocation as a direct loss of water otherwise available for agricultural use.6 The water con­ tractors balance the benefits of agricultural production against less tan­ gible environmental benefits. This is expressed in the "No water, no jobs" slogan or the "Water = Food and Fiber" bumper stickers fre­ quently seen in the central San Joaquin Valley.7 Challenges to this mind-set have been unsettling to many growers. Water contractors do not see themselves as arrogant, but as solid, law­ abiding citizens, who want to be left alone by the government. On the other side, environmental interests view implementation as a sorely needed remedy for sixty years of environmental neglect and abuse over a huge geographic area. The water contractors hotly dis­ pute that water development has led to environmental degradation. They point to the wetlands created by rice farms, the air-cleansing ef­ fect of tens of thousands of trees, and the open spaces created by agri­ culture as benefitting the environment.8 4 See CVPIA website, supra note 3 (listing team members on the 800,000 Acre­ Feet of Project Water). S {d. 6 See, e.g.. JENNIFER LoMBARDI. WATER POLICY IN TRANsmON: A STRUGGLE OF IN­ TERESTS. FARM WATER REPoRT (JanJFeb. 1995) "The Central Valley Project Improve­ ment Act of 1992 marked a fiery policy battle. A total of 800,000 acre-feet of water was reallocated for habitat conservation. It limited further the number of fish taken or killed at the federal pumps, and made out-of-basin transfers legal. For the first time since the project's christening, fish took precedence over people." 7 The California Farm Water Coalition, a non··profit agricultural educational and awareness organization based in Sacramento, California, sponsors its Farm Water "Works!" public outreach program. Large banners and bumper stickers are co-spon­ sored by the Coalition and other organizations. These banners are posted along major highways to educate the public about farm water issues. The Coalition website is http: <.-.\www.cfwc.com>. 8 CALIFORNIA FARM WATER COALITION. WATER FACT BOOK [hereinafter FACT BOOK]. 1998] Central Valley Project Improvement Act 61 Environmentalists understand the economic implications to agricul­ ture, but contend that a balance must be struck between environmental exploitation and protection. Water contractors exercise substantial influence in local and state politics and administration. They exercise substantially less influence in federal politics and administration.9 Congress no longer favors big projects favoring local interests with minimal payback to a substantial federal deficit. Additionally, the western water projects have always been disfavored by midwestern and eastern representatives and sena­ tors. 1O Finally, the California Congressional delegation does not speak with one voice on water and environmental issues.I I Public perception has changed as well. Environmentalists' fight against the New Melones Dam and the Peripheral Canal in the late 1970's awakened the public to the nature of big water projects.J2 Envi­ ronmental disasters like the Kesterson National Wildlife Refuge sele­ nium poisoning demonstrated weaknesses in the water projects.13 Projects proposed by water contractors were defeated in Congress.14 Critics of farm water policy point out that violations of acreage lim­ itations under the Reclamation Act have reduced water contractor credibility.15 As a result, western water contractors are viewed by some as beneficiaries of governmental corporate welfare. 16 On the other hand, the economic output of Central Valley agriculture is prodigious. The water contractors point out that farm subsidies consist of less than 9 Michael Doyle, Tony Coelho's Departure Signals New TImes In Water Politics, CAllF. JOUR., Aug. 1990, at 5-7. 10 GENE ROSE, SAN JOAQUIN-A RIVER BETRAYED 126 (1992) [hereinafter ROSEl; NORRIS HUNDLEY. JR.• THE GREAT THIRST 265 (1992) [hereinafter HUNDLEY]. II George Miller, D-Martinez, is an opponent of the water projects and was the principal sponsor of the CVPIA. Other Central Valley Congressional representatives strongly favor water interests. In 1995, Congressmen Doolinle, Fazio, Pombo, Rada­ novich, Thomas, Dooley and Condit introduced H.R. 1906 (which became H.R. 2738). This bill was drafted by the Central Valley Project Water Association and would have eviscerated the CVPIA. The bill was withdrawn pending completion of the Bureau's administrative proposals. /2 ROSE, supra note 10, at 129; HUNDLEY, supra note 10. at 309-30. 13 ROSE. supra note 10, at 124-26. 14 ROSE. supra note 10, at 129. In 1986, Richard Lehman, D-Fresno, successfully opposed construction of the Rodgers Crossing Dam, promoted by the Kings River Water Association and Kings River Conservation District. The dam would have flooded the upper Kings River Canyon to a point just below the Kings Canyon Na­ tional Park. I~ ROSE. supra note 10, at 127-29; HUNDLEY, supra note 10, at 314-15. Marc Reisner, Farmers vs. Cities, CALIF. JOUR., May 1995, at 2. 16 ROSE, supra note 10, at 127; HUNDLEY, supra note 10, at 271-72. 62 San Joaquin Agricultural Law Review [Vol. 8:59 one percent of total farm income. 17 Total farm output exceeds $20 bil­ lion, annually. While water contractors acknowledge that water projects have been somewhat subsidized, they argue that the subsidies have been for the general good of the public, much like highways or airports. 18 The Bureau consequently faces the thorny problem of how to allo­ cate and manage 800,000 acre-feet of CVP water in the least disrup­ tive way possible. II. B2 WA1ER This section examines the statutory definitions and requirements un­ derlying the 800,000 acre-foot water allocation. The CVPIA defines three categories of project water available for fish and wildlife restoration. Section 3406(b)(l) states: As needed to achieve the goals of this progrdlll, the Secretary is author­ ized and directed to modify CVP operations to provide flows of suitable quality, quantity, and timing to protect all life stages of anadromous fish, except that such flows shall be provided from the quantity of water dedi­ cated to fish, wildlife, and habitat restoration purposes under paragraph (2) of this subsection; from the water supplies acquired pursuant to para­ graph (3) of this subsection and from other sources which do not conflict with the fulfillment of the Secretary's remaining contractual obligations to provide CVP water for other authorized purposes. The Bureau considers this B1 water to be water available from in­ creased operational efficiencies. It is referred to as "reoperational water." The primary sources of B1 water are from modifications to project operations, the 800,000 acre-foot allocation (B2 water, de­ scribed next), and purchased water (B3 water, described following). Section 3406(b)(2) provides the actual allocation of 800,000 acre- feet, stating: [U]pon enactment of this title dedicate and manage annually 800,000 acre-feet of Central Valley Project yield for the primary purpose of im­ plementing the fish, wildlife, and habitat restoration purposes and mea­ sures authorized by this title; to assist the State of California in its efforts to protect the waters of the San Francisco Bay/Sacramento San Joaquin Delta Estuary; and to help to meet such obligations as may be legally im­ posed upon the Central Valley Project under state or federal law follow­ ing the date of enactment of this title, including but not limited to addi­ tional obligations under the federal Endangered Species Act.