“Providing drainage services” to where?

Why all the hand wringing over news that Judge Wanger, in his new career as attorney Wanger, will be representing Westlands Water District?

First, so what? Second, is it really a surprise, especially after his final, September ruling/rant? The case he is involved in is an important one, and a similar thematic of the relationship between shifting ideological winds, fact and science is likely to play out in it.

As we know from Judge Wanger’s last rulings, lots of science is, like a Jackson Pollock painting, open to too much interpretation.


Attorney Wanger will be representing WWD in a case against Westlands that asserts the district should be treated as a polluter, and therefore be required to obtain a state waste water discharge permit.

That Westlands’ soil leeches toxic salts that kill living things is not in dispute. What is in dispute is whether (ethically, ideologically, fiscally) the government should provide a “service” to deal with this privately produced pollution or - depending on your point of view - simply whether it is a matter of legal record that the government agreed to do this.

I suppose a secondary (perhaps even primary) question is whether the government can require the polluter to pay (through toxic discharge permitting fees) for the right to access this service.

Here are a string of comments exchanged between Mike Wade and others at Mr Carter’s blog - that gives a pretty clear sense of the chicken or the egg argumentation likely to be heard at the trail.

Which gets me back to Judge Wanger. And the likely logic of his WWD defense. This is not a question of overly speculative science about the degree of environmental harm Westlands toxic runoff produces. Stipulated - Westlands is toxic - but that’s not the issue.

What is at issue is what Mr Wade refers to in the comments string - the history of a promise made during the negotiation of the Central Valley Project Improvement Act (CVPIA) - that the government, that generally evil regulatory body of lying scientists and overzealous treehuggers, agreed to “provide drainage services” (aka: build a drainage infrastructure) to capture toxic drainage water discharged from the lands of a small group of private landowners.

Gotta love a euphemism that can make agreeing to create a very large and expensive government-built infrastructure sound like hiring a plumber to clear a clogged pipe.

But as anonymous asked at Mr Carter’s blog: A drain to where? The answer to that simple question lies in the legal geography where navigating facts becomes confusing, ideological, baseless and finally, Not My Problem.

I have a few basic public policy and engineering questions about this infrastructure:

Will this system be the agricultural (that is, the very horizontally extensive) equivalent of a mine’s tailings pond or dairy farm’s manure basin? If so, what are the precedents for things like mine tailing ponds or dairy farm manure capture basins, the products of private industry, being paid for by the government? Is it anticipated that the system will include water purification to remove the toxic salts before sending the water on its way north to the Delta or migrating birds die on its surface? If not, will the toxic water be stored and separated from the ecosystem indefinitely, like a Yucca Mountain for toxic drainage water?

From what I can infer from Mike Wade’s position, ex-Judge Wanger will likely argue that Yes, the government is contractually obligated to build this infrastructure, and therefore they are the appropriate body to answer these sorts of questions, and besides, are irrelevant to this case, and not the obligation of my client to answer.

Because they agreed to “provide drainage services” to Westlands in a legally binding contract. That’s all that matters.

What it costs and how to engineer it is the government’s problem, not the landowners’. As Kevin Bacon, aka Capt. Jack Ross, once said, “[t]hese are the facts of the case, and they are not in dispute.” What is, perhaps, is whether WWD will have to pay to use a government service, and if so, how much.

And once that’s determined, determining whether it makes more sense to buy out the WWD landowners than it does to indefinitely pay for lawyers to haggle, engineers to design, and remediation infrastructures to (possibly) correct an error in judgment made decades ago.

Posted by John Bass on 03 Dec 2011 | Comments (12)


Perhaps Mr. Wade could chime in with an online link to the actual documentation of this “promise”. I think it would be quite enlightening.

Here’s the link I suggest: http://www.ewg.org/node/8587

John, Chris - Is the argument Wade is making here - that the federal government remains obligated to fund/construct drainage facilities for the western San Joaquin Valley - a common one, part of an enduring position Westlands et al have taken?

John Fleck - the link Chris has posted gives a pretty good overview of the history of drain infrastructure and to whom the responsibility to drain falls.

If one tries to imagine this history from the perspective of the embattled, siege mentality of the WWD, it is hard to imagine it is not an enduring position. It is also not difficult to construct a logical legal argument linking drain infrastructure responsibilities to why there is pollution. Or to see a WWD legal strategy of delay and deflection.

How can Westlands be expected to stop the pollution the government is supposed to contain? Why should WWD have to get a permit to pollute? It’s the govt’ who’s polluting, etc.

John Fleck- The answer to your question is yes. I’m still anticipating someone, anyone showing me where this promise is codified.Seems to me there was a promise to only divert “surplus” water.
We see how well that’s working out.
John Bass- If anyone should be able to justify an “embattled,siege mentality” it would be the taxpayers of the state and nation who were sold this bill of goods to start with. It’s a dog chasing it’s tail.
When it became obvious that completing the San Luis Drain would unleash the same horrendous damage that occurred at Kesterson on to the delta this should have been over. It’s not over for a real simple reason. The billionaire with a “B”, and the assorted millionaires who make up the vast majority of the Westlands Water District ownership, who’s money continues to fund this delaying tactic, are lacking one component to complete their success. Ownership of senior water rights.If they had senior water rights in hand the negotiation would be well under way to fallow those lands through a federal buyout.The water is worth more than the land is.
It’s a win win if you’re part of the 1%.So what if the taxpayers get stuck with the bill.
Privatize the profit, socialize the risk.


If an individual signs a contract to purchase a vehicle and agrees to make monthly payments, is that individual allowed to stop the payments and keep the car? Didn’t think so. If a couple signs a contract to purchase a house and make monthly payments, are they allowed to continue living in the home if they stop making payments? Didn’t think so. It is federal law that places a legal and contractual obligation on the federal government to provide a drainage service to the lands that include Westlands Water District. Federal courts, including the 9th Circuit Court of Appeals, have upheld this contractual obligation. 

The author chooses to ignore this legal and contractual obligation and instead attempts to portray the farmers of Westlands as evil people who produce an alleged toxic brew. Overlooked is the fact that selenium is a naturally occurring mineral. Overlooked is the fact that years ago the federal government attempted to uphold its legal obligation by providing drainage service from the lands. Overlooked is that the results of this drainage attempt resulted in the drainage system being plugged. Overlooked is the fact that Westlands farmers continued to produce a healthy and safe food supply despite this alleged toxic brew that the author insists is a threat. 

The legal and contractual obligation to provide the drainage service still exists today. Congress has yet to appropriate the funds for this project. Meanwhile, discussions are ongoing to determine how best to provide this service and under what arrangement. After all, a contract was signed.

Mike Wade
California Farm Water Coalition

Mike, your attempt to characterize my post as choosing to ignore facts is not fair to me.

Keep in mind that I am the one bringing your thoughts (via Lloyd Carter’s blog) to this post about what Wanger’s argument may be.

I would argue that contrary to your characterization, we are making essentially the same set of points. We simply write about them from our respective perspectives, you as an advocate for Westside agriculture and me as a neutral party.

That selenium is a naturally-occurring substance means nothing. The fact that in concentrated doses it is toxic to living things is the problem. So it is not an “alleged toxic brew” as you call it - it is toxic, period - and that is why the issue of providing drainage services To Where is interesting to discuss.

My guess is that your constituency will eventually win this argument, and that the Delta will continue to be the recipient of this toxin. Since the Delta is a big place, the selenium will only gradually kill it, and everyone can find some slippery science to justify looking the other way while it dies.

By the way, I’ve ordered The Fall and Rise of the Wetlands of California’s Great Central Valley. I am sure I will be revisiting this issue after the new year.

Mike , you keep throwing “facts” out there rapid fire and never address the question.
You are “alledgedly” (snark) an intelligent guy, where do you go with this “alleged toxic brew” ?
Should we dump it in the delta ?
That was the backup plan after the Kesterson tragedy illustrated the “alledged” toxicity of the runoff.

Is your only answer that it isn’t Westlands problem and that the taxpayers in the form of the federal government should foot the bill for this sweetheart deal ? Nice.
Privatize the profit, socialize the risk.
Once again the 99% are left carrying the bags of the 1%

Any chance at all you want to offer a link to where this “promise” originated ?

Chris Gulick—-Look up the San Luis Act. Pub. L. No. 86-488, 74 Stat. 156 (1960) and you will find the language that requires the drainage service. You will also find it in this two-page pdf—- http://www.usbr.gov/mp/sccao/sld/docs/hist_persp_05-2002.pdf <http://www.usbr.gov/mp/sccao/sld/docs/hist_persp_05-2002.pdf>—- that provides a short history of the San Luis Unit. If you keep searching, you’ll find multiple documents that make reference to the drainage requirement.

More recently, in 2000 the 9th Circuit Court of Appeals upheld the District Court’s decision that the federal government was responsible for completing the drainage project. You can read that decision at http://scholar.google.com/scholar_case?case=16898032245289311418&q=Firebaugh+Canal+Co.+v.+U.S.&hl=en&as_sdt=2,5&as_vis=1.

In this case, the court stated: “[W]e agree with the district court that the Department of Interior must act to provide drainage service. The Bureau of Reclamation has studied the problem for over two decades. In the interim, lands within Westlands are subject to irreparable injury caused by agency action unlawfully withheld. Now the time has come for the Department of Interior and the Bureau of Reclamation to bring the past two decades of studies, and the 50 million dollars expended pursuing an “in valley” drainage solution, to bear in meeting its duty to provide drainage under the San Luis Act.”

An excellent example of an innovative effort underway that demonstrates a useful approach to drainage problems is happening within the Grasslands area south of Los Banos. Huell Howser did a recent piece on this and can be viewed at our web site: http://www.farmwater.org

Mike Wade
California Farm Water Coalition

Mike Wade-Thanks for the links.
Here’s the one I found succinct and to the point.
Here’s the quote I found helpful “decisions about drainage issues of the San Luis Unit cannot be undertaken in a vacuum”

Once again you have successfully avoided the original question sir.


Kesterson is not an option.

Can’t dump it in the ocean.

Can’t dump it into the bay/delta.

Reverse osmosis is a pretty spendy option.

C’mon Mike,show some real backbone. Offer a solution.

If this is truly an untenable situation and no cost effective solutions are to be had, ending irrigation of the affected lands seems to be the only option left.

If the best example of a possible solution you can offer is the Grasslands Drainers,I’m unimpressed.
How many more 10 year exemptions will be required from the water board before selenium from ag runoff is no longer polluting the watershed ?

And just in case you have forgotten the original question sir:

Chris Gulick—- The ultimate goal of the Grasslands Project is to reduce
drainage discharges to zero.  That will likely require treatment to a point
where it is useable for agronomic purposes on the very fields where it
originated.  Treatment costs could be shared with urban water suppliers in
exchange for a share of the agricultural water districts’ Central Valley
Project (CVP) supply.

Despite your personal misgivings many people ARE impressed with this
project, including folks at the Bureau of Reclamation, the Regional Water
Quality Control Board and U.S. EPA, who called it a “success story.
http://water.epa.gov/polwaste/nps/success319/ca_san.cfm.  That’s why the
project was granted a ten year permit extension.

Mike Wade
California Farm Water Coalition

“Treatment costs could be shared with urban water suppliers in
exchange for a share of the agricultural water districts’ Central Valley
Project (CVP) supply.”
I want in the worst was to comment on this, but, I don’t dare give you the opportunity to once again avoid the question.

One last try Mike.


Hey Chris and Mike, thank you for the links.

Mike, your first link doesn’t seem to work. I reviewed the legalistic one, which seems to bear out your position. I found the EPA Grasslands Bypass Project article especially interesting, and will be writing about it.

Chris, I also found the Keys testimony transcript very informative of the larger problems and costs associated with the aforementioned legal obligations, and will be writing about this, too.

Add a comment

  1. Please enter the word you see in the image below:
  2. Remember my personal information

  3. Notify me of follow-up comments?