Adapted from testimony presented to the California House Natural Resources Subcommittee on Water and Power, Hearing on "Extinction is Not Sustainable Water Policy: the Bay-Delta Crisis and Implications for California Water Management," July 2, 2007 at Vallejo, California.
My name is Felix E. Smith. I held the first deformed migratory bird, an American coot hatchling, found at Kesterson NWR in 1983. At that time I was a U.S. Fish and Wildlife Service biologist recently assigned to look into the emerging issues involving agricultural drainage and wastewater. That experience impacted my life.
Water is the environment in which fish and other aquatic resources must carry on all their life processes. Such resources, associated uses and values are inextricably tied to the physical, chemical and biological aspects of that aquatic environment. Healthy and diverse aquatic populations are indicative of good water quality conditions (flow, temperature, oxygen and chemical parameters). The total aquatic environment (the water, the bed, the riparian vegetation and associated insect life, the food web) all interact and therefore must be suitable for aquatic life at the individual, population, and community levels.
The Federal Clean Water Act, as amended, and the Public Trust embrace affirmatively and positively that the people are to be protected against all unwise and unreasonable uses of Federal and State waters. Uses of water can be considered unreasonable because they pollute, because they offend our sense of aesthetics or natural beauty, because they interfere with the right of the public to enjoy a natural resource of state or national significance, because they threaten in a harmful way to upset the ecological balance of nature, or because to allow this unreasonable use confers a valuable privilege which is inconsistent with protecting the public trust.
Agencies like the Federal Environmental Protection Agency (EPA) and California’s EPA were established to protect the public interest and quality of the Nation’s lands and waters. Such agencies are not to squander clean air, allow the pollution of our rivers, streams and groundwater, allow the pollution or other degradation of our land leaving a degraded legacy for our grandchildren or allow the pollution of the bodies of our children, our fish and wildlife resources or our food supply. These same agencies should not look like shills for corporate farms or massive water districts.
Any effort at maintaining sustainable water quality, agriculture and wetland ecosystems (fish and wildlife resources) must involve an understanding of the interaction between the soil and the flow of water over, through, and under the soil well beyond the point of application. Preserving soil fertility is critical to sustaining its productivity. Preserving and maintaining water quality is critical to the productivity of water as an ecosystem and as a commodity for domestic and industrial uses. Unlike soil, which can be built up over time, water can’t be built or enhanced. A river can be lost to a farmer; to a species of fish or to fish resources; lost as a place to recreate or as a water supply. It can be diverted, polluted, misused or over appropriated. Aldo Leopold’s Round River makes the principles of ecology clear and vivid, suggesting that nature is a "Round River," like a stream flowing into itself, going round and round in an unceasing circuit, going through all the soils, the flora and fauna of the earth while supporting many resources, beneficial uses and values. Destroying one part can destroy it all and all its benefits to society.
A use of the lands and waters of a watershed that so degrades the sustainability of a downstream ecosystem or a component of that ecosystem to make it unsuitable for sustaining viable agriculture, wildlife, fish and other aquatic life, or which makes fish unsuitable for human consumption, or which is a hazard to other fish and wildlife, or which degrades ecological, aesthetic, recreational uses, small craft navigation, and scenic values, is inconsistent with public trust protection. The unreasonable use of water is therefore a nuisance. When chemicals enter the bodies of children, or enter the domestic or wildlife food supply to toxic levels without our consent, it is a trespass.
Here is an example brought to you in part by the Federal Bureau of Reclamation and the Central Valley Project.
It was known for a long time that the soils of the Westside of the San Joaquin Valley were derived from parent material formed in an old seabed. The California Department of Water Resources Bulletin No. 89, Lower San Joaquin Valley Water Quality Investigation – 1960, discusses concerns about the chemicals and various salts in the soils and drainage from the area. The soils and parent material extend throughout the Westside, south to the end of the Valley. The sodium ion was a major concern along with a variety of sulfates, boron and numerous trace elements. Even at that time drainage was believed to be a serious and emerging problem. Drainage from the Panoche area was highly concentrated from a quality standpoint and "unusable for beneficial purposes." At that time the San Joaquin River was already seriously polluted from agricultural drainage and wastewater.
The observation that "the drainage was highly concentrated from a quality standpoint and unusable for beneficial purposes" sparked little attention. With the application of vast quantities of Bureau of Reclamation water to the highly saline / seleniferious soils, the need for drainage works quickly become apparent. Surface waters and the San Joaquin River showed additional evidence of pollution.
By 1982 some people, including a few Grassland duck club owners, believed that something was wrong in the northern Grasslands. They had noticed sick and dead birds in 1981 and 1982. In 1983 the first deformed young of migratory birds were found on Kesterson NWR by researchers from the U. S. Fish and Wildlife Service. Kesterson Reservoir (NWR) was the then terminus of the San Luis Drain. People were disturbed by the pictures of dead and grossly deformed waterfowl and shorebirds obtained from Kesterson Evaporation Ponds that were appearing on the nightly television news at dinnertime. Selenium (Se) in the agricultural drainage accumulated via the food chain to high levels in their tissues resulted in dead adults, dead and deformed young. Several species of fish had elevated Se levels in their tissues.
From 1986 to today (2007), Selenium contamination is sufficient to cause deformities and threaten reproduction of key species within the area of the greater Grasslands, in the San Joaquin River to the Bay-Delta estuary. Deformed migratory birds have been found in every year field investigations were conducted for such evidence. Selenium concentration was also high in eggs that were sampled, which in turn could have led to deformities. Fish resources continue to show high levels of Se because of a Se -contaminated food chain. Selenium has been found in what is usually called edible tissues and in reproductive organs of birds and fish.
Human health advisories have been issued against consuming Se contaminated edible tissues of fish (bluegill and largemouth bass) and of migratory birds (ducks and coots). Women of childbearing age and children are cautioned against eating such tissues. State Board reports indicate that in the Bay-Delta, surf scoter, greater and lesser scaup and particularly white sturgeon appear to be the most at risk to Se toxicity because they feed on filter feeders (i.e. bivalves). Concentrations Se found in 62 white sturgeon muscle samples and 42 liver samples far exceed tissue thresholds for reproductive effects. Recent findings add the Sacramento splittail to the list of species exhibiting elevated Se levels.
Selenium bioaccumulation is a major water quality problem. The combination of California’s climate, hydrology, Se loading, Se reactivity, and Se bioavailability poses a significant threat to the aquatic ecosystem of the Lower San Joaquin River and Bay-Delta. Selenium contamination is damaging beneficial uses, degrading food sources of humans and wildlife, aesthetic, recreation and ecological values. Risks to fish and bird reproduction could lead to extinction via contamination of the invertebrate food supply. Filter feeders are great concentrators of Se. Aquatic insects were the primary food item of shore birds. The Report concludes that bivalves appear to be the most sensitive indicator of Se contamination in the Bay-Delta. In the Bay-Delta and the lower San Joaquin River tidal action will increase the resident time of Se, exposing all aquatic organisms and increasing the ability of food organisms to accumulate greater amounts of Se and pass it up the food chain to predators. The bottom line is that saline / seleniferious soils of the Westside of the San Joaquin Valley contain a reservoir of Se, other trace elements and a variety of salts that, with irrigation, will continue to leach from the soils to the shallow groundwater for years and years to come. This Se leachate / drainage will continue to degrade down slope lands, surface and groundwater, fish and wildlife habitats and other beneficial uses of the receiving waters including the San Joaquin River and Delta.
Today we have the longest Selenium hazardous waste site know to man, extending from at least the Mendota pool and the Grasslands (near Los Banos), downstream via the San Joaquin River to the Delta, Suisun Bay and adjacent marshes. This involves 130 miles of San Joaquin River, miles of waterways in the Delta and 1,000s upon 1,000s of acres of San Joaquin Valley lands and aquatic ecosystems.
With the above information one could allege that the continued irrigation of saline / seleniferious soils of the Westside of the San Joaquin Valley and Se contaminated discharges to the San Joaquin River constitute a waste and unreasonable use of the State’s water, and a nuisance.
Some Suggested Actions
Control of agricultural pollution also might be achieved by instituting best management practices, land retirement, and by economic incentives (substantial fines, forfeiture of all or a portion of appropriated water rights or contract allotments). Land retirement is an important option. Prevent Federal irrigation water from being used on the Se source lands. Taking the land out of production that is the source of the majority of the salt and selenium problems should have quick and positive results and many public benefits. This can be attained by direct purchase of land or the irrigation rights, leasing land, purchasing the irrigation water allotment to such lands while prohibiting the use of groundwater on those lands.
Retiring lands containing significant levels of selenium or other toxic materials would have just a one-time cost. A long-term lease might also work, for there would be little if any maintenance costs. Land not needed for conservation purposes such as restoring native grasslands and related fauna of the San Joaquin Valley could be sold, with title restrictions, for selected compatible uses such as dry-land farming, grazing, etc. Within the Westlands Water District problem soils have been estimated at 100,000 to 275,000 acres.
At a cost of $1,000.00 per acre it would cost $100,000,000.00 to retire 100,000 acres or $275,000,000.00 for the 275,000 acres. Lands acquired should be purchased with today's realities in mind. This includes limited or poor ground water and extensive selenium and sodium sulfate problems. Any value added to the price of land should not be based on speculation, the availability of federally subsidized water, or on the potential construction of Federal drainage facilities. A reality is that problem soils without water are just about worthless.
For each acre of irrigated land retired, there would be commensurate saving of about 2.0 to 3.5 acre feet of water per acre (depending on crop) or about 200,000 to 350,000 acre feet for each 100,000 acres taken out of irrigation. This water is firm yield water imported from northern California. For each irrigated acre taken out of production there would be a reduction of 20 to 60 pound of pesticides (active ingredients) plus 80 to 250 pounds of carrier materials, (oils, etc.) not applied to the soils. There would be a reduction of the amount of drainage and wastewater generated of about .6 to .8 acre feet per acre of land retired or 60,000 to 80,000 acre-feet for each 100,000 acres retired. There would be a saving in electrical energy by not having to pump water from the Delta. There should be benefits to fish resources and associated fisheries as up to 600,000 to 900,000 acre-feet would not have to be pumped from the Delta.
The water savings could be used to restore or otherwise benefit fish resources and fisheries throughout the waters of the Bay-Delta watershed. Any remaining water could be sold for municipal uses.
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