Tragedy at Kesterson Reservoir: Death of a Wildlife Refuge Illustrates Failings of Water Law

15 ELR 10386 | Environmental Law Reporter | copyright © 1985 | All rights reserved


Tragedy at Kesterson Reservoir: Death of a Wildlife Refuge Illustrates Failings of Water Law

Laura H. Kosloff

Editors' Summary: In 1983 Kesterson National Wildlife Refuge in central California achieved national prominence when Fish and Wildlife Service scientists discovered severely deformed and dead waterfowl at the refuge and concluded that the cause was selenium contamination from irrigation wastewater stored there. The use of Kesterson as a disposal site for such irrigation wastewater will cease in six months, but the problems it has raised will not soon fade. The contamination at the site must be cleaned up and further contamination prevented. The water that is currently being sent to the refuge for disposal must somehow be treated and stored. And in the long run, resource managers and policy makers must address the potential for widespread selenium contamination at other sites throughout the West. Although numerous environmental laws have been implicated, none provides a comprehensive solution to a complex problem that touches not only on wildlife, but also on water pollution, hazardous and toxic substances pollution, and reclamation policy. Conflicts between federal, state, and local governments exacerbate the problem, and many governmental agencies, private organizations, and individuals have a stake in the issues. The comment provides a history of the events at Kesterson and an overview of the litigation the crisis has has spawned. It also looks at how federal reclamation policies have contributed to a major drainage problem by encouraging full-scale development of water resources without giving appropriate thought to treatment and disposal of the resulting wastes.

[15 ELR 10386]

Water law in this country is a confusing and sometimes contradictory jumble of federal and state laws regulating water resources and their use. State statutory and common law governs the right to use water, but the federal government holds reserved rights to use water on Indian reservations and federal enclaves.1 States may make agreements among themselves regarding the use of water within large river basins, but Congress must approve such interstate compacts. A separate body of law for groundwater rights developed outside the statutory and common law schemes governing surface water rights, generally in a piecemeal fashion as the courts have attempted to fit specific groundwater disputes into the existing complicated scheme. The law of water rights and use is separate from the law of water pollution and the two sometimes work at cross purposes.

The law governing the use of water for agricultural purposes has dramatically shown this confusion. The federal government, under the authority of the Bureau of Reclamation in the Department of the Interior, builds and operates large water projects to provide subsidized water for irrigation of millions of acres of private land throughout the country, particularly in the West.2 State law governs the use of this water, and the Bureau of Reclamation must apply for permits, as must any individual water user. The Bureau then enters into contracts with water districts or individuals for their use of the water for irrigation. Agricultural activities, however, degrade water quality with animal wastes, chemicals, sedimentation, and salinity.3 Developments in recent years have caused the salinity problem to become a serious issue throughout the West and a subject of national headlines.4

Irrigation degrades water quality because much of the water applied to crops by irrigation is lost through evapotranspiration.5 Suspended solids and other materials do not evaporate or transpire with the water, thus causing higher [15 ELR 10387] concentrations of organic matter, bacteria, and other forms of pollution.6 The water left over from irrigation, the "irrigation return flows," also contains salts that remain behind when the water evaporates. Many agricultural crop strains are not selt-resistant; high salt content in the soil can result in significantly decreased productivity and eventual loss of the land for any agricultural use.Yet irrigation return flows are essentially unregulated. The primary vehicle for control of water pollution, the Federal Water Pollution Control Act (FWPCA),7 specifically exempts irrigation return flows fromthe requirements imposed by the national pollutant discharge elimination system (NPDES).8 Yet saline buildup threatens the productivity of thousands of acres throughout the western half of the United States.9

A recent series of events has brought this problem into particularly clear focus, with a tragic twist. In late 1982 and early 1983 United States Fish and Wildlife Service (FWS) scientists found high concentrations of selenium in fish at Kesterson National Wildlife Refuge in central California;10 in 1983, they discovered alarming numbers of severely deformed and dead waterfowl at the refuge.11 The refuge, strategically located along the Pacific flyway, the route taken by millions of migratory birds every year, served double duty as a storage and evaporation area for irrigation wastewater from farm lands in the San Joaquin Valley. A concrete-lined canal intended to carry these flows north to natural waterways that eventually flow into the Pacific Ocean was never completed, and terminated instead in reservoirs at the refuge. Tests disclosed abnormally high concentrations of selenium in the water at Kesterson as compared to other wildlife areas.12 FWS scientists concluded that the selenium had been leached out of the soil by irrigation and carried to the refuge in irrigation wastewater, and that the selenium was causing the wildlife deformities and death seen at the refuge.13

Selenium has given the serious but familiar problem of salinity an extra edge of possible disaster. Since the crisis at Kesterson surfaced, various groups and individuals have alleged that thousands of acres throughout the West are contaminated by the toxic substance, not only lands irrigated by federally-subsidized water but also large expanses of rangeland.14 A problem long perceived as the gradual loss of productive land now poses a serious threat to plant and animal life and, perhaps, to public health. The toxification of the salinity problem also changed the legal scene, activating pollution control and other laws that had been out of the picture.

Initial governmental reactions to the disclosures at Kesterson were dramatic. The Bureau of Reclamation considered closing the irrigation drainage system sending water into Kesterson towards the end of 1984, but made no decision on the matter.15 In February, 1985, the California State Water Resources Control Board (State Board), acting on its authority under the Porter Cologne Water Quality Act16 and new Toxic Pits Cleanup Act,17 ordered the Bureau to clean up the severely contaminated reservoir within three years and to prevent further damage.18 As a result, 42,000 acres of farmland in Westlands Water District (WWD) would likely have lost irrigation water and access to drainage, since the State Board order suggested closing the drain was the only possible alternative. The board also estimated that 60 percent of the drainage water at Kesterson was seeping downward and could threaten water supplies.19 Although Secretary of the Interior Hodel initially responded that the contamination was not migrating from the Kesterson site and that there would be time to consider the appropriate solution,20 on March 15, 1985, he announced that continued operation of the refuge for irrigation wastewater storage could constitute a violation of the Migratory Bird Treaty Act, which bars the "taking" of any migratory bird,21 and ordered that drainage into the refuge cease.

In the San Joaquin Valley, reaction was swift.22 The announcement arrived at the start of the spring growing season, when banks consider agricultural loans. Without the guarantee of water, these loans were in jeopardy.23 Loss of the loans would affect more people than simply the 50 or so farming operations in question; entire communities [15 ELR 10388] depended on these farms. People saw their established governmental support eroding and their way of life disappearing, all for a few birds and fish.24

Less than two weeks later, the Bureau and the water district reached a compromise.25 Westlands will manage its drainage problem on its own, in return for the Bureau continuing storage of drainage water in the ponds at Kesterson for one year to allow the district time to find an alternative drainage method. The water district will decrease its use of the drain leading to the Kesterson reservoirs in phases, culminating in a permanent closure of the drain in June 1986. The agreement provides that if Westlands fails to meet the schedule, the Department of the Interior may plug the drains without Westlands' opposition.

The forging of an agreement that will keep the water flowing to Westlands Water District for an additional year did not quiet the growing controversy. To the contrary, the threat of immediate closure and the subsequent compromise focused national attention on the increasingly imminent dangers to land productivity and plant and animal health caused by state and federal governments' long neglect of the issue of irrigation drainage water. Not everyone is satisfied with the agreement between the Bureau and Westlands, and several lawsuits have been filed. Individual landowners are concerned about property damage, and various environmental and citizen groups are concerned about environmental pollution and natural resource damage. State legislators have attacked the federal government for its poor handling of the problem, and federal officials indicate the state should take some of the responsibility. The issues touch many interest groups, none of which desires to come out the loser. To understand the acute toxics problem at Kesterson, one must first look to the broader context of irrigation and Western agriculture.

The Drive to Settle the West

The Reclamation Act of 1902 authorizes the Bureau of Reclamation to deliver water, and to place limitations on delivery, to farmland in the San Joaquin Valley of California and all over the West.26 The Act embodies the national policy government to settle the western portion of the country.27 Would-be settlers required an incentive to move to arid areas; that incentive was to be the cheap water that the federal government would provide. The Reclamation Act contains various provisions to prevent large landowners from receiving federally subsidized water to ensure theaccomplishment of Congress' goal that the West be settled by family farmers.28 Originally the Act required that a person live on or near his farm in order to receive federal water and prohibited the delivery of water to persons owning or leasing farms of more than 160 acres.29 The 1982 amendments eliminated the residency requirements30 and allowed for water delivery to up to 960 acres under certain circumstances.31 The acreage limitations and residency requirements have caused a great deal of controversy32 and serious federal-state conflicts ever since their enactment, as economies of scale in the West prevent the profitable development of farms of the size Congress envisioned in 1902.33

Originally, the Reclamation Act allowed for ten-year interest-free loans to potential settlers. That time period was later extended to 40 years, still interest-free.34 In addition, recipients of federal water need only repay that portion of the project costs they can afford; remaining costs are ostensibly paid from other sources, such as the sale of power from hydroelectric dams.35 Most current contracts do not come up for renewal until the end of this century, and very few water districts have made any significant payments on their capital obligations.36

The irrigation wastewater stored at Kesterson comes from farmland in Westlands Water District. Land ownership and water use in Westlands clearly illustrates some of the conflicts between federal and state water law and policy. The federal government's objective under the Reclamation Act of 1902 was to encourage the development of the family farm, yet farming operations in Westlands [15 ELR 10389] represent anything but the traditional family farm.37 The average Westlands farm size is about 2200 acres, far above the statutory limits set by the Reclamation Act for receipt of federally subsidized water.38 In addition, the average Westlands farm is a large business, not a family. There are about fifty farming operations in the 42,000-acre area in question; most have substantial farming operations elsewhere as well.39 Cotton is planted on about half of Westlands' acreage, a crop the prices for which are often below production costs; other surplus crops grown in the district include barley, rice, sorghum, and wheat.40 In addition, although the events at Kesterson have focused attention on a single water district in the western San Joaquin Valley, the Reclamation Act abuses prevalent here have occurred many times elsewhere in the West. Kesterson illustrates more than the consequences of ignoring the problem of what to do with irrigation drainage; it shows the consequences of inconsistent water policies that provide inexpensive water to marginal lands to grow crops that may he marginally profitable. Indeed, if one takes into account all the costs associated with the provision of subsidized water, growing these crops on these lands is not profitable at all.41

The Selenium Problem

Selenium is a nonmetal element that occurs naturally as a soluble salt in trace amounts in many soils. The salts dissolve and move through the soil into surface and groundwater with the addition of water. If there is sufficient rainfall and drainage, the salts will flush out of the soil groundwater or surface waters leading to the sea. If the soil does not drain well, the salts will accumulate as standing surface water evaporates and is replenished with more saltladen runoff.42 This situation typifies much of the western half of the United States. The land receives little rainfall, yet at the same time it is potentially extremely productive. Vast areas have been converted to intensive agricultural production with the help of large, federally funded irrigation projects. The aridity of the natural climate in many places requires the importation of water, but poor drainage requires the exportation of irrigation return flows to avoid salt buildup.

Some salts are taken up through bioaccumulation into plants and through the food chain to animals if they are not flushed out of the soil. A serious health problem can arise result if the salts consist of toxic elements such as selenium. Although selenium may actually be necessary for animal health in trace concentrations,43 in high concentrations it can prove injurious or lethal, causing birth defects and abnormalities of the types seen at Kesterson.44 The simple buildup of salts, whether or not toxic, can also retard plant growth and eventually render the land useless for further agricultural production.

The events at Kesterson have given rise to a number of questions concerning the cleanup of this and other potentially contaminated areas and the preventing of further contamination. There is no readily apparent feasible and inexpensive technology for removing selenium from the water. If the toxicity of selenium and its presence in the soil of the western San Joaquin Valley was known or should have been known to state and federal government officials, the choice of Kesterson as a storage site may not have been appropriate, particularly given its status as a crucial stopping point along the major north-south bird migration route in the western United States. What will be the impacts on agricultural production if the contamination is widespread and the method chosen to stop contamination is to cut off water delivery to Westlands and other water districts? The controversy has now engaged numberous governmental agencies, private organizations, and individuals, who are being forced to face these larger legal and policy issues as a result of the toxic contamination of Kesterson.

The Establishment of Kesterson National Wildlife Refuge as an Irrigation Reservoir

A relatively impermeable clay layer underlies much of the western San Joaquin Valley; sometimes this layer is within five to ten feet of the surface. The clay impedes the movement of water downward through the soil and prevents the salts from leaching out.45 It is therefore necessary to send excess water and salts from the Valley for disposal elsewhere.46

[15 ELR 10390]

The officials responsible for encouraging the construction of irrigation projects to provide water to arid areas gave little thought to the disposal of irrigation drainage water.47 Yet evidence existed that should have given them reason to consider the issue. In the San Joaquin Valley, the clay barrier below the soil caused water to back up onto the land as early as 1890, long before the major water projects in California were built.48 Even when the Central Valley Project (CVP), one of the largest federal irrigation projects in the country, was built in the 1930s, Congress made no provision for drainage facilities.49 It was not until 1960 that Congress authorized the drainage system of which Kesterson is a component.50

The San Luis Drain was to extend for 200 miles along the San Joaquin River and empty into the waterways of the Sacramento-San Joaquin Delta, which drain into the San Francisco Bay. The drain would have dumped 50 tons of toxic salts approximately every 15 minutes; the premise was that this would be well within the absorption capabilities of the ocean.51 Construction of the drain began in 1968. In 1975 with only 82 out of 200 miles finished, conflicts centering around federal funding, studies required by the state prior to issuance of a NPDES permit to the Bureau for operation of the drain, and the potential impacts of the dumping on water quality levels in the Delta and Bay blocked further construction.52

The ponds at Kesterson were designed as regulating reservoirs for the complete San Luis Drain, but have remained as the terminus of the incomplete drain since construction was indefinitely halted.53 Irrigation drainage water began to flow into Kesterson's evaporation ponds in 1978.54 Currently, approximately 7000 acre-feet of drainage water from farmland in the Westlands Water District flows annually through the concrete-lined San Luis Drain into 1200 acres of evaporation ponds at Kesterson.55 These ponds have turned the wildlife refuge into a toxic dump.

Kesterson thus presents five basic issues. One is stopping the influx of contaminated water, and has been "resolved" by the June 1986 closure agreement. The second is cleaning up or detoxifying the existing contamination. A third is the question of what can and should be done with Westlands' irrigation return flows once the drain shuts down. A broader issue is how to handle the potential for widespread selenium contamination throughout the West. And last is the fact that there are no easy solutions to any of the above.

Legal Responses

The presence of a toxic substance such as selenium brings into play a far wider range of environmental law than would normally be implicated by the pollution associated by irrigation return flows. Wildlife protection and hazardous waste laws can be marshalled alongside water pollution statutes and the reclamation laws.

But none of these bodies of law offers a comprehensive solution. When the crisis at Kesterson became too hot to handle, the federal government responded under the Migratory Bird Treaty Act (MBTA).56 The MBTA clearly prohibits the "taking" of migratory waterfowl.57 Although the Act has not previously been applied to a situation such as the one at Kesterson National Wildlife Refuge, it does appear to have been violated there. The MBTA has been construed not to require intent to take or kill, and pesticide poisoning has been held to a prohibited act.58 Attorneys within the Department of the Interior concluded that the Department would be violating the Act if it continued to allow drainage to flow into the ponds and cause further wildlife deformities and death in the refuge. The Department eventually concluded that the Act would allow use of the drain to be phased out.59 As a "quick" method for [15 ELR 10391] Interior to get out of an increasingly difficult situation, resort to the Migratory Bird Treaty Act may have worked. As a means for resolving the core problem, however, the stragegy failed.60 The drain will continue to be operative for several months, and the MBTA offers no mechanism for cleaning up the existing contamination or preventing it at other locations in the future,61 Selenium is still in the soil at Kesterson National Wildlife Refuge. And to prevent continued poisoning of waterfowl at the contaminated site, the Bureau has had to institute a "hazing program" to keep birds away.62

The MBTA was only the first of many environmental laws that have become entangled in Kesterson litigation. Several suits have been filed. Robert and Karen Claus, landowners in the area surrounding the contaminated area, filed suit in early 1984 to compel the Secretary of the Interior to close the refuge and clean up the alleged damage.63 The Clauses also submitted claims against the Department of the Interior for damage to their land resulting from flooding and waterfowl easement damages.64 Interior's Office of the Regional Solicitor for the Pacific Northwest Region denied the claims and the Clauses filed suit in federal court for these claims. The suit was voluntarily dismissed in June, 1985.65 The Clauses' action for compensation for inverse condemnation is currently before the United States Claims Court.66

The Natural Resources Defense Council (NRDC), Robert and Karen Claus, the County of Merced, and Westlands Water District have filed four separate petitions for administrative mandamus in several state superior courts.67 The cases have been combined in a "coordination proceeding," which enables hearing and briefing schedules tobe conducted together.68 The state has moved to dismiss the first three cases on the grounds that the complaints did not name the Bureau of Reclamation as a necessary party, and the statute of limitations for amending the complaints to include the Bureau has run.69 These cases are likely to be embroiled in procedural matters for some time.

The litigation does not end here. Three environmental groups, the NRDC, Consumers Union, and California Rural Legal Assistance, recently filed suit under several federal environmental statutes in United States District Court for the Eastern District of California.70 The groups challenge the Department of the Interior's action under the Migratory Bird Treaty Act,71 the Reclamation Act,72 Federal Water Pollution Control Act,73 Resource Conservation and Recovery Act,74 Endangered Species Act,75 and National Environmental Policy Act.76 The plaintiffs ask that the court immediately stop drainage through the San Luis Drain and into Kesterson, instead of accepting the June 30, 1986 deadline in the Bureau-Westlands agreement. They also ask that the court stop Westlands from sending drainage water to Grasslands Water District and the San Joaquin River. Lastly, they request that the Bureau be compelled to immediately clean up the contaminated area. A short look at some of the claims presented in this suit will illustrate the breadth and complexity of the environmental issues raised by Kesterson.

* Reclamation Act:77 Plaintiffs allege that the Department of the Interior and the Bureau have violated § 8 of the Act by supplying irrigation water to lands not entitled to the water, and by not complying with the public trust doctrine, orders issued by the State Board, and state water quality control laws.78

Section 8 of the Reclamation Act requires federal agencies to adhere to state law with respect to the "control, appropriation, use and distribution" of irrigation water.79 In California v. United States, the leading case interpreting § 8, the Supreme Court approved the State Board's authority to impose conditions on a water appropriation permit submitted by the Bureau of Reclamation as long as those conditions were not inconsistent with congressional directives.80 The State Board imposed water quality requirements, [15 ELR 10392] among other conditions designed to protect wildlife and recreational values.81 The issue with respect to this claim will be the extent to which state law is inconsistent with congressional objectives.

* Federal Water Pollution Control Act.82 Plaintiffs allege that the drainage water is a "waste" and the drain is a "point source"83 under the FWPCA, and that the Bureau's operation of the drain without a permit violates the Act.84

The FWPCA includes "agricultural waste discharged into water" within its definition of "pollutant." Although irrigation return flows are specifically excluded from the point source definition,85 the Bureau must apply to the State Board for a discharge permit for the drain since California has an approved NPDES permit program.86 The Bureau had not filed a report of waste discharged when it first started to send wastewater through the drain to the Kesterson reservoirs in the late 1970s.87 Although it did later file an NPDES permit application,88 the State Board ordered a new report of waste discharge when it ordered the Bureau to develop a closure and cleanup plan for Kesterson in February 1985.

* Resource Conservation and Recovery Act (RCRA):89 Plaintiffs allege the irrigation drainage water flowing into Kesterson constitutes hazardous waste and presents an imminent and substantial endangerment to the public health and environment in violation of RCRA. They also allege the Bureau is an owner or operator of a RCRA-regulated facility, and that the Bureau has violated the Act by disposing of hazardous waste without a permit.90

Waste material resulting from agricultural operations and disposed of by discharge is a "solid waste."91 However, RCRA regulations specifically exclude irrigation return flows from the definition of "solid waste."92 Selenium itself is not excluded. A solid waste is a hazardous waste if it is not excluded elsewhere and is listed as such. Selenium is listed in several forms.93

Whether sovereign immunity insulates the federal government from liability for cleanup for its own hazardous waste sites and the extent to which the states may direct cleanup of federal sites is not clear. Section 6001 of RCRA waives immunity in certain circumstances, but the issue has not yet been litigated.94 One commentator has concluded that § 6001 probably does not waive sovereign immunity for federal compliance with state administrative orders for hazardous waste site cleanup.95

* Endangered Species Act (ESA).96 Plaintiffs allege the Bureau did not conduct a biological assessment as required by the ESA to determine whether endangered or threatened species are present, that endangered species live in the refuge and surrounding areas, and that some of these species have been killed as a result of the Bureau's actions. According to the complaint, the EIS prepared for the San Luis Drain in the early 1970s identified several endangered species to be present.97

The requirements of the ESA are triggered when the agency proposes an action that may have an impact on endangered or threatened species. At that point, the Act requires that federal agencies initiate a consultation process with the Secretary of the Interior or Commerce and conduct "biological assessments" to consider whether a proposed action will adversely affect an endangered or threatened species.98 The purpose of the assessment is to ensure that agency action not be likely to jeopardize the continued existenced of endangered or threatened species.99 Upon initiation of the consultation process, the agency may not make any "irreversible or irretrievable commitment of resources" that would preclude measures being taken to mitigate or prevent the harm to the species' habitat.100

The Bureau's construction and operation of the San Luis Drain would likely be considered an agency action. If the EIS has determined that endangered species exist in the Kesterson area, then the Bureau does have a duty to conduct a biological assessment to consider the impact of the drain's operation on these species.

The Act also prohibits any person from "taking" any [15 ELR 10393] endangered or threatened species.101 Specific intent to kill may not be necessary for there to be a taking, thus the Bureau's actions in permitting the disposal of a substance toxic to wildlife at Kesterson could be construed to be a taking if endangered or threatened species have in fact been killed.

* National Environmental Policy Act (NEPA):102 Plaintiffs allege that the environmental impact statement (EIS) the Bureau prepared in 1972 for the San Luis Unit is inadequate with respect to the drain's potential environmental impacts. They allege that since 1972 the Bureau has become aware of different alternatives, learned new facts regarding environmental conditions, detected significant adverse environmental effects that were not addressed in the EIS, and changed the proposed actions in the San Luis Unit.103

NEPA requires that a supplemental EIS be prepared when the agency makes substantial changes in the proposed action that are relevant to environmental concerns or if significant new information arises that bears on the action.104 Although it is not clear from the complaint what new alternatives are now available to the Bureau, certainly the discovery of selenium at the refuge in the early 1980s and the conclusion that irrigation drainage water contributed to the high concentrations found would constitute significant new information not available in 1972 when the EIS was prepared. The Bureau did prepare a Supplemental EIS on the San Luis Unit in 1979, but it was later withdrawn.105

Although numerous environmental laws are implicated by the events at Kesterson, none provides a comprehensive solution to a complex problem that touches on national water policies, water pollution, hazardous and toxic substances pollution, and harm to wildlife. Some protection for wildlife can be afforded by the ESA and the MBTA, but these statutes do not address the existing contamination problem at Kesterson or elsewhere. FWPCA, one logical source of authority for treatment of water pollution, exempts irrigation from its regulation of point sources; in the absence of such regulation, farmers are not likely to take expensive voluntary measures.In addition, FWPCA applies only to discharges to navigable waters. Even if it is applicable, FWPCA only addresses pollution discharges, not cleanup. CERCLA is one logical cleanup tool, but it is not yet clear that EPA can or will resort to it at Kesterson. RCRA's imminent hazard provision offers another mechanism for cleanup, but it is not clear what effect the RCRA exemption for irrigation return flows will have on the viability of that approach. NEPA can require preparation of environmental analyses or environmental impact statements prior to construction of an operation like the San Luis Drain, but cannot stop irrigation drainage completely and offers little help at Kesterson itself. And even if legal authority to force cleanup can be found, serious problems remain. Cleanup of selenium-contaminated areas is difficult from a technological point of view. Methods of removal of selenium salts from water remain at the pilot stage, and even with studies underway large-scale desalinization is not around the corner. In addition to the technical problems, the costs of any pretreatment and cleanup methods are likely to be substantial. The issue involves economic and political issues close to many widely diverging interest groups. One impact of the court actions may be to set the table of issues for negotiation,s giving the environmental groups seat and allowing agencies to rethink their policies of neglect.

Bureaucratic and Legislative Responses

At the same time that some groups have thrown Kesterson into the courts in attempts to force the federal and state governments to face the problem, other interest groups are pursuing different strategies. The Department of the Interior has proposed a comprehensive study to find long-term solutions to irrigation drainage problems in the San Joaquin Valley, in which the Fish and Wildlife Service, the United States Geological Survey, and the Bureau of Reclamation will all be involved.106 H.R. 2959, the appropriations bill for energy and water development for fiscal year 1986 currently before Congress, includes funding for the continuation of ongoing data collection and research efforts pending enactment of authorizing legislation for this study.107

Interior's study, however, focuses on long-range solutions and involves substantial cost.108 In the meantime, the water districts must do something with their irrigation wastewater. Westlands Water District especially faces a short-term crisis, since its agreement with the Bureau calls for complete closure of the Kesterson reservoirs by June, 1986. In an attempt to address this problem, the Environmental Defense Fund and Westlands have formed an unusual coalition. Normally on opposite sides of water resource issues, the two groups have jointly asked Congress for a $3.7 million loan to conduct feasibility and testing studies of alternative technologies in drainage control.109 [15 ELR 10394] The project would include economic studies on water trading and marketing, testing of pilot technologies for removal of selenium from water, and feasibility studies and pilot testing of deep well injection and solar pond brine management.110 The proposal would involve not just the cleanup of the selenium-contaminated drainage water, but resale and reuse of the water, and use of the saline brine for solar electricity generation.111 With an 18-month schedule, EDF and WWD believe that technological methods for drainage control can be in place long before the wide-ranging Interior study has been completed.112 The House and Senate conference on H.R. 2959 approved the loan.113

Conclusions

Federal water policies regarding irrigation have contributed to a major drainage problem by encouraging full-scale development of water supplies without giving appropriate thought to treatment and disposal of the wastes irrigation creates. Today, as a result, a powerful local agency in the San Joaquin Valley, the Westlands Water District, faces the consequences. Amid widespread fears that closure of the Kesterson reservoirs will result in hundreds of "mini-Kestersons" as farmers create their own evaporation ponds, Westlands has promised to find a drainage solution in exchange for the continued delivery of irrigation water. In less than a year, the district's drain collectors into the San Luis Drain will be plugged.

Although events have focused on one large affluent water district which receives a disproportionate share of federal water,114 the implications of Kesterson go far beyond Westlands. The issue of treatment and control of saline agricultural return flows faces the agricultural community in the West as a whole. How Westlands deals with the problem, as well as what it proposes, may indicate the prognosis for successful resolution of the dilemma. Kesterson has also dramatized the potential irrigation raises for significant environmental damage. Evaporation ponds, thought to be an adequate means of storage for saline return flows, can become deadly toxic dumps. If selenium contamination is as widespread as some have alleged, solutions on a massive scale will be necessary.

But solving the selenium problem, an achievement still far from being realized, will not dispel the environmental threat caused by saline irrigation return flows or the economic doubtfulness of providing the water. By revealing the potentially widespread problem of toxics buildup in irrigation drainage water and dramatizing the broader salinity problem, the events at Kesterson call into question the extent of the costs and benefits of providing heavily subsidized water to grow surplus agricultural crops in the arid West.115

1. Winters v. United States, 207 U.S. 564 (1908).

2. Reclamation Act of 1902, 43 U.S.C. §§ 371-573.

3. 2 DAVIDSON, AGRICULTURAL LAW 143 (1981).

4. Salinity is considered the "most pervasive" of all the negative environmental impacts of irrigation. FREDERICK & HANSON, WATER FOR WESTERN AGRICULTURE 188 (1982).

5. Evapotranspiration is the combined process of evaporation of water from the soil and transpiration from plants. JUERGENSMEYER & WADLEY, AGRICULTURAL LAW § 23.4.3 (1982).

6. Id.

7. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

8. 33 U.S.C. § 1363(14), ELR STAT. 42146.

9. See, e.g., JUERGENSMEYER & WADLEY, AGRICULTURAL LAW § 23.4.3 (1982) (salinization threatens one-half the irrigated acreage in the United States); UNITED STATES DEPARTMENT OF THE INTERIOR, WESTWIDE STUDY REPORT ON CRITICAL WATER PROBLEMS FACING THE ELEVEN WESTERN STATES 117 (1975) (salinity could have serious adverse effects on the entire irrigated agricultural industry in the West); FREDERICK & HANSON, WATER FOR WESTERN AGRICULTURE 189 (1982) (25-35 percent of irrigated lands have salinity problems); van Schilfgaarde & Rhoades, Coping with Salinity, reprinted in ENGELBERT & SCHEURING, WATER SCARCITY: IMPACTS ON WESTERN AGRICULTURE 157, 158 (1984) (recurring estimate is that up to one-third of irrigated land is affected by salt; although reliable data are lacking, it is clear that salinity problems are widespread).

10. UNITED STATES DEPARTMENT OF THE INTERIOR, OFFICE OF INSPECTOR GENERAL, REPORT OF INVESTIGATION 19 (Sept. 4, 1985) (hereinafter called INSPECTOR GENERAL REPORT).

11. Id. at 20; ENVIRONMENTAL DEFENSE FUND & WESTLANDS WATER DISTRICT, A RESEARCH PROJECT FOR MANAGING SUBSURFACE AGRICULTURAL DRAINAGE WATER IN THE SAN JOAQUIN VALLEY IN AN ENVIRONMENTALLY AND ECONOMICALLY SOUND MANNER (1985) (hereinafter called EDF/WWD PROPOSAL).

12. INSPECTOR GENERAL REPORT, supra note 10, at 19.

13. Id. at 23-24.

14. See, e.g., Harris, Kesterson Said Tip of Selenium Iceberg, Sacramento Bee, Mar. 24, 1985, at A1; Harris, Selenium: Toxic Slaughter-house Sacramento Bee, Sept. 9, 1985, at A1; Harris & Morris, Toxic Chemical Threatens West, Sacramento Bee, Sept. 8, 1985, at A1; Harris, U.S. Government Quashes Efforts to Probe Selenium: Officials Reported Wary of Suits, Cleanup Bills, Sacramento Bee, Sept. 10, 1985, at A1.

15. Borba, Closing Drain Would Wipe Us Out, Farmers Say, Sacramento Bee, Dec. 26, 1984.

16. CAL. WATER CODE §§ 13300 et. seq.

17. CAL. HEALTH & SAFETY CODE §§ 25208 et. seq.

18. State of California, State Water Resources Control Board, Order WQ 85-1 (Feb. 5, 1985); INSPECTOR GENERAL REPORT, supra note 10, at 28.

19. Carter, 1973 Memo Warned U.S. of Kesterson Problems, Sacramento Bee, Mar. 13, 1985, at A9.

20. Johnson, U.S. Won't Appeal Order to Clean Up Kesterson Refuge, Sacramento Bee, Mar. 8, 1985, at A1.

21. 16 U.S.C. § 703, ELR STAT. 41837.

22. Hall, U.S. to Close Kesterson, Cut Off Irrigation: Lenders are Left High and Dry, Sacramento Bee, Mar. 16, 1985, at A1; Harris, What Now? West Valley Farmers Ask, Sacramento Bee, Mar. 17, 1985, at A1; Johnson, 42,000 Farm Acres Threatened, Sacramento Bee, Mar. 16, 1985, at A1; Shallit, Selenium Scare Creates a Valley of Doubts, Sacramento Bee, Mar. 24, 1985, at A24.

23. Hall, U.S. to Close Kesterson, Cut Off Irrigation: Lenders are Left High and Dry, Sacramento Bee, Mar. 16, 1985, at A1; Harris, What Now? West Valley Farmers Ask, Sacramento Bee, Mar. 17, 1985, at A1.

24. Rose, Mendota, Firebaugh Reel From News of Shut-off, Sacramento Bee, Mar. 16, 1985, at A14.

25. INSPECTOR GENERAL REPORT, supra note 10, at 29; Carter, U.S. Eyes Plan to Keep Westlands Irrigated, Sacramento Bee, Mar. 18, 1985, at A1.

26. 43 U.S.C. §§ 371-573.

27. FREDERICK & HANSON, WATER FOR WESTERN AGRICULTURE 232; Taylor, National Reclamation in Imperial Valley: Law v. Policy, 11 ECOLOGY L.Q. 125, 126 (1983); NATURAL RESOURCES DEFENSE COUNCIL, TURNING OFF THE TAP ON FEDERAL WATER SUBSIDIES 11 (1985) (hereinafter called NRDC REPORT).

28. 43 U.S.C. §§ 371-573; Taylor, supra note 27, at 126.

29. 43 U.S.C. § 431; Bryant v. Yellen, 447 U.S. 352, 10 ELR 20482 (1980). A married couple could own or lease up to 320 acres.

30. 43 U.S.C. § 390kk.

31. Reclamation Reform Act of 1982, 43 U.S.C. §§ 390kk, 390dd. The new acreage limitations apply to any district which enters into contracts after October 12, 1982; amends its contract after October 12, 1982 to enable it to obtain supplemental or additional benefits; or amends its contract to conform with the new provisions. 43 U.S.C. § 390cc.

32. The Bureau of Reclamation has long been criticized for not strictly enforcing the residency requirements, and the impact of the acreage limitations has been avoided by farmers by the use of intricate leasing and selling schemes. In Westlands Water District, for example, the average farm size in 1977 was 2,249 acres; yet Westlands receives approximately 1.15 million acre-feet of federally subsidized water annually. NRDC REPORT, supra note 27, at 29, 34. Although the provision of water to Westlands is clearly illegal under the Reclamation Act, there are no indications that the district's federal water supplies will cease as a result; in fact, recent reports indicate that the federal government will acquiesce in a negotiated court settlement that will end a suit by Westlands against the government on this issue. Peterson, Californians Won't Lose Cut-Rate Irrigation Water, Washington Post, Nov. 10, 1985, at A7.

33. The state readily agreed to and encouraged federal takeover of the Central Valley Project (CVP) in the 1930s, because it felt that without a large-scale technological fix in the form of a large water project transporting water from the north to the south and providing sufficient storage for dry seasons, agricultural production in the state would quickly stagnate. However, with the CVP under federal control, no water could be delivered to the large farming operations that constituted the bulk of the agricultural community in the San Joaquin Valley. Dissatisfaction with the acreage limitations imposed by the Reclamation Act on the operation of the CVP contributed to the state's eventual successful push for its own independently run project, as well as to the 1982 amendments to the acreage limitations and residency requirements.

34. 43 U.S.C. § 485h.

35. 43 U.S.C. § 485h-1. See LeVeen, Reclamation Policy at a Crossroads, 19 BULL. INST. GOVT'L STUD., U. Cal. Berkeley (No. 5, Oct. 1978) (reprinted in TARLOCK, WATER RESOURCES MANAGEMENT 507 (2d ed. 1980)).

36. NRDC REPORT, supra note 27, Appendix B: Basic CVP Data, Table B1.

37. 43 U.S.C. §§ 371-573.

38. NRDC REPORT, supra note 27, at 34. The Reclamation Act originally prohibited delivery of federal water to individuals owning or leasing more than 160 acres or married couples owning or leasing more than 320 acres. 43 U.S.C. § 431.

39. NRDC REPORT, supra note 27; Carter, 1973 Memo Warned U.S. of Kesterson Problems, Sacramento Bee, Mar. 13, 1985, at A1.

40. NRDC REPORT, supra note 27, at 36; Carter, Wealthy Landowners Affected by Kesterson Crisis, Sacramento Bee, Mar. 13, 1985, at A9.

41. See, e.g., LeVeen, supra note 35, reprinted in TARLOCK, at 508. Subsidized irrigation has encouraged the production of crops that were already surplus commodities. In addition, the shift in geographical production of such crops as cotton to California has caused financial difficulties to small farmers who cannot compete with the giant agricultural operations in Westlands Water District. Lastly, subsidized water is applied to lower quality, marginally productive lands.

42. See, e.g., Keene, Managing Agricultural Pollution, 11 ECOLOGY L.Q. 135, 139 (1983); FREDERICK & HANSON, WATER FOR WESTERN AGRICULTURE 185 (1982); JUERGENSMEYER & WADLEY, AGRICULTURAL LAW § 23.4.3 (1982); U.S. DEPARTMENT OF THE INTERIOR, WESTSIDE STUDY REPORT ON CRITICAL WATER PROBLEMS FACING THE ELEVEN WESTERN STATES 117 (1975).

43. Selenium may aid in protection against hypertension and cancer. PYE, PATRICK, & QUARLES, GROUNDWATER CONTAMINATION IN THE UNITED STATES 100, 103 (1983).

44. The exact toxicity levels of selenium are not known. However, selenium has been implicated in Environmental Protection Agency (EPA) reports listing outbreaks of disease attributed to drinking of contaminated groundwater. PYE, PATRICK, AND QUARLES, GROUNDWATER CONTAMINATION IN THE UNITED STATES 96 (1983). EPA has established a maximum of 10 parts per billion (ppb) for drinking water. 40 C.F.R. pt. 141.11(b). In contrast, the Sacramento Bee, in a massive investigation covering 15 states found selenium occurring at levels of 600-7,500 ppb. Selenium has been found at Kesterson in concentrations up to 4,200 ppb. Green, Vital Selenium Becomes Poison in Big Doses, Sacramento Bee, Mar. 24, 1985, at A11.

45. EDF/WWD PROPOSAL, supra note 11.

46. Approximately one million acres out of the San Joaquin Valley's five million acres of irrigated land need drainage, and need it soon; high salinity levels and rising water tables currently threaten about 400,000 acres. The amount could double by the end of the century. See FREDERICK & HANSON, WATER FOR WESTERN AGRICULTURE 190 (1982); 3 U.S. DEPARTMENT OF THE INTERIOR, WESTSIDE STUDY REPORT ON CRITICAL PROBLEMS FACING THE ELEVEN WESTERN STATES (State Comments-California). Over 100,000 acres in Westlands Water District alone have water levels occurring ten feet or less below the surface. EDF/WWD PROPOSAL, supra note 11, at 3.

47. DAVIDSON, supra note 3, at 142; Kahrl, The Poison Also Rises: Westlands' Unresolved Waste-Water Dilemma, Sacramento Bee, July 21, 1985, at H1.

48. Blum, San Joaquin's Farming Crisis: Waste Water With Nowhere To Go a Toxic Time Bomb, Sacramento Bee, Nov. 25, 1984, at A1; Wheeler, Tale of a Toxic Marsh, NOT MAN APART, Mar.-Apr. 1985, at 10.

49. The CVP was originally planned as a state project, but the federal government assumed control in the 1930s when the state could not obtain financing. See TARLOCK, WATER RESOURCES MANAGEMENT 336-346 (2d ed. 1980).

50. San Luis Act of June 3, 1960, Pub. L. No. 86-488, 74 Stat. 156.

51. Blum, San Joaquin's Farming Crisis: Waste Water With Nowhere To Go a Toxic Time Bomb, Sacramento Bee, Nov. 25, 1984, at A1; Wheeler, Tale of a Toxic Marsh, NOT MAN APART, Mar.-Apr. 1985, at 10. Originally, construction of the drain was to be a joint federal-state endeavor; however, the state could not get repayment assurances from farmers and eventually backed out. INSPECTOR GENERAL REPORT, supra note 10, exhibit 16 (Department of Water Resources Correspondence to Bureau of Reclamation regarding Responsibility for Drain Construction), exhibit 17 (Bureau of Reclamation Memorandum to Department of the Interior regarding Construction of Interceptor Drain for San Luis Unit), and exhibit 94 (Bureau of Reclamation Letter to Senator Wilson regarding Response to San Luis Drain Inquiry).

52. INSPECTOR GENERAL REPORT, supra note 10, at 1; EDF/WWD PROPOSAL, supra note 11, at 3. Although the FWPCA excludes irrigation return flows from regulation as a point source, the Environmental Protection Agency (EPA) notified the Bureau in 1978 that it did not interpret this to preclude the state from regulating return flows either under separate state authority or under FWPCA § 402. INSPECTOR GENERAL REPORT, supra note 10, exhibit 31 (Bureau of Reclamation and Environmental Protection Agency Correspondence regarding San Luis Drain Waste Discharge Criteria (Sept. 21, 1977, and Jan. 6, 1978)); 42 U.S.C. § 1342(l), ELR STAT. 42142.

53. INSPECTOR GENERAL REPORT, supra note 10, at 1; EDF/WWD PROPOSAL, supra note 11, at 3. The Bureau of Reclamation owns the land at Kesterson. After drain construction ceased, the Bureau and the Fish and Wildlife Service agreed to operate the Kesterson reservoirs and surrounding federal land, about 5,900 acres, as a wildlife refuge to help mitigate loss of wildlife habitat in the state. INTERIOR GENERAL REPORT, supra note 10, exhibit 23 (Bureau of Reclamation memorandum to Fish and Wildlife Service regarding Interim Management of Kesterson Reservoir as a Waterfowl Management Area (July 28, 1969)) and exhibit 25 (Bureau of Reclamation and Fish and Wildlife Service Cooperative Agreement for Management of Kesterson Reservoir (July 23, 1970)).

54. INSPECTOR GENERAL REPORT, supra note 10, at 14.

55. EDF/WWD PROPOSAL, supra note 11, at 3. The refuge does not receive all the return flows generated by the water district; 18,000 acre-feet/year flows directly into the San Joaquin River and 28,000 acre-feet/year is sent to another water district, Grasslands Water District, for pasture irrigation and wetlands maintenance. INSPECTOR GENERAL REPORT, supra note 10, exhibit 32 (Water Availability Study for California Wetlands); Blum, San Joaquin's Farming Crisis: Waste Water With Nowhere to Go a Toxic Time Bomb, Sacramento Bee, Nov. 25, 1984, at A1.

56. 16 U.S.C. §§ 703-712, ELR STAT. 41837.

57. Id., § 703. The Act prohibits the taking, killing, or possessing of migratory birds.

58. United States v. FMC Corp., 572 F.2d 902, 8 ELR 20326 (2d Cir. 1978); United States v. Corbin Farm Service, 444 F. Supp. 510, 8 ELR 20333 (E.D. Cal.), aff'd 578 F.2d 259, 8 ELR 20615 (9th Cir. 1978). Comment, Courts Hold Scienter Not Required for Conviction Under Migratory Bird Treaty Act, 8 ELR 10092 (1978).

59. See sources cited supra note 25.

60. Use of the MBTA has been referred to as a "clever strategy" by the Reagan Administration to force Congress to take responsiblity for the Kesterson crisis. Johnson, Drain Shutdown Puts Lawmakers in No-Win Situation, Sacramento Bee, Mar. 17, 1985, at A1.

61. See supra text accompanying note 14.

62. INSPECTOR GENERAL REPORT, supra note 10, exhibit 91 (FWS Memoranda regarding Eradication of Vegetation from Evaporation Ponds at Kesterson Reservoir (July 2, 1984) and exhibit 98 (FWS Memorandum and Media Release regarding Waterfowl Hazing at Kesterson Evaporation Ponds (Sept. 4 and 24, 1984)).

63. INSPECTOR GENERAL REPORT, supra note 10, exhibit 93 (Department of the Interior, Office of the Solicitor, Letter to the Office of the Inspector General regarding Chronology of James and Karen Claus Litigation (July 30, 1985)). The Claus suit alleges violations of the Migratory Bird Treaty Act and state water quality control laws. Id., exhibit 1 (Robert J. Claus Correspondence, Nov. 1979 through Apr. 1985).

64. Id. The waterfowl easements were part of a FWS program to increase waterfowl acreage along the Pacific Flyway. FWS bought conservation easements within the Grasslands Water District to maintain the wetlands as waterfowl habitat. Id. at 14 and exhibit 33 (Migratory Bird Conservation Commission and Land Acquisition Ascertainment Report for West Grasslands by the United States Fish and Wildlife Service (Apr. 1978)).

65. INSPECTOR GENERAL REPORT, supra note 10, exhibit 93, supra note 61.

66. Id.

67. Kesterson Reservoir Cases, Judicial Council Coordination Proceeding No. 1882 (Sacramento Co. Super. Ct. complaints filed February, 1985) (Coordinated review of No. 327373 (Sacramento Co. Super. Ct.), Nos. 77683, 77999, 78010 (Merced Co. Super. Ct.), and C496067 (Los Angeles Co. Super. Ct.)).

68. Kesterson Reservoir Cases, Judicial Council Coordination Proceeding No. 1882 (Sacramento Co. Super. Ct.). The coordination proceeding is under CAL. RULES OF COURT 1550(b).

69. The motion does not apply to Westlands' action, which did name the Bureau.

70. Natural Resources Defense Council, Inc. v. Hodel, No. S85-1214LKK, ELR PEND, LIT. 65877 (E.D. Cal. complaint filed Aug. 23, 1985).

71. 16 U.S.C. §§ 703-712, ELR STAT. 41837.

72. 43 U.S.C. §§ 371-600e.

73. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

74. 42 U.S.C. §§ 6901-6987, ELR STAT. 42001.

75. 16 U.S.C. §§ 1531-1543, ELR STAT. 41825.

76. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009. Plaintiffs did not bring an action under the Comprehensive Emergency Response, Compensation, and Liability Act (CERCLA). CERCLA authorizes EPA to force those responsible for the release of hazardous substances into the environment to clean up the site, or it may spend Superfund monies to do so itself. However, CERCLA does not authorize citizen suits to compel cleanup.

77. 43 U.S.C. §§ 371-600e.

78. Natural Resources Defense Council, Inc. v. Hodel, No, S85-1214LKK, ELR PEND, LIT. 65877 (E.D. Cal. complaint filed Aug. 23, 1985).

79. Reclamation Act § 8, 43 U.S.C. § 383.

80. 438 U.S. 645, 8 ELR 20593 (1978). Previous cases had appeared to hold that the federal government must comply with state law if it was necessary for it to obtain water rights, but not that it must deliver water subject to state-imposed conditions. In California v. United States, the Court disavowed this language, stating it was only dicta. 438 U.S. at 672-673, 8 ELR at 20600.

81. On remand, the 9th Circuit upheld all the State Board conditions. 694 F.2d 1171, 13 ELR 20429 (9th Cir. 1982).

82. 33 U.S.C. §§ 1251-1376, ELR STAT. 42101.

83. 33 U.S.C. § 1362(14), ELR STAT. 42146.

84. Natural Resources Defense Council, Inc. v. Hodel, No. S85-1214LKK, ELR PEND, LIT. 65877 (E.D. Cal. complaint filed Aug. 23, 1985).

85. 33 U.S.C. § 1363(14), ELR STAT. 42146.

86. See supra note 52.FWPCA § 208 provides for nonpoint source management planning and indicates congressional intent that return flows not be totally ignored. "Any plan prepared under such process shall include, but not be limited to . . . (F) a process to (i) identify, if appropriate, agriculturally . . . related nonpoint sources of pollution, including return flows from irrigated agriculture, and their cumulative effects . . . and (ii) set forth procedures and methods (including land use requirements) to control to the extent feasible such sources;" 33 U.S.C. § 1288(b)(2)(F), ELR STAT. 42122:2; DAVIDSON, supra note 3, at 163; JUERGENSMEYER, supra note 5, at 577.

87. INSPECTOR GENERAL REPORT, supra note 10, exhibit 10 (Affidavit of Norman W. Cedarquist (Mar. 19, 1985)).

88. Id., exhibit 39 (NPDES Discharge Permit Application (May 1981)). The state did not ask for information on selenium on the original list of discharge criteria requirements.Id., exhibit 38 (SWRCB Letter Regarding Public Hearing on San Luis Drain and Interim Waste Discharge Requirements Guidance (Feb. 20, 1981)). The state did list selenium oxide and total selenium as a constituent of choice to include in the discharge requirements, and the Bureau did begin collecting samples in mid-1981. Id., exhibit 40 (Interview of George Collins (June 35, 1985)) and exhibit 41 (Statement of Matthew C. Rumboltz (May 15, 1985)).

89. 42 U.S.C. §§ 6901-6987, ELR STAT. 42001.

90. Natural Resources Defense Council, Inc. v. Hodel, No. S85-1214LKK, ELR PEND. LIT. 65877 (E.D. Cal. complaint filed Aug. 23, 1985).

91. 40 C.F.R. § 261.2, ELR REG. 47322.

92. 40 C.F.R. § 261.4(a)(3), ELR REG. 47323.

93. 40 C.F.R. § 261.33, ELR REG. 47326:5 (selenious acid, selenium dioxide, selenium disulfide).

94. 42 U.S.C. § 6961, ELR STAT. 42032.

95. Breen, Federal Supremacy and Sovereign Immunity in Environmental Law, 15 ELR 10326, 10331 (Oct. 1985).

96. 16 U.S.C. §§ 1531-1543, ELR STAT. 41825.

97. Natural Resources Defense Council, Inc. v. Hodel, No. S85-1214LKK, ELR PEND, LIT. 65877 (E.D. Cal. complaint filed Aug.23, 1985).

98. 16 U.S.C. § 1536(c)(1), ELR STAT. 41830.

99. 16 U.S.C. § 1536, ELR STAT. 41830.

100. 16 U.S.C. § 1536(d), ELR STAT. 41830.

101. 16 U.S.C. § 1538, ELR STAT. 41832:1.

102. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

103. Natural Resources Defense Council, Inc., v. Hodel, No. S85-1214LKK, ELR PEND, LIT. 65877 (E.D. Cal. complaint filed Aug. 23, 1985).

104. 40 C.F.R. § 1502.9, ELR REG. 46021.

105. Natural Resources Defense Council, Inc., v. Hodel, No. S85-1214LKK, ELR PEND. LIT. 65877 (E.D. Cal. complaint filed Aug. 23, 1985).

106. EDF/WWD PROPOSAL, supra note 11, at 5.

107. The san Joaquin Interagency Drainage Program has been investigating drainage control in the Valley. The Program has concentrated on studies of the San Luis Drain itself. EDF/WWD PROPOSAL, supra note 11, APPENDIX II: THE ENVIRONMENTAL DEFENSE FUND'S PERSPECTIVE ON A DRAINAGE MANAGEMENT PROGRAM FOR THE WESTLANDS WATER DISTRICT. In addition, Congress created an interagency Task Force in 1977 to review the management, organization, and operation of the San Luis Unit to determine the extent to which it conforms with the Act of June 3, 1960 and the Reclamation Act. Pub. L. No. 95-46, 91 Stat. 225. The Task Force published a report that reviewed, among other things, the environmental and fiscal impacts of completing the San Luis Drain and the Bureau's record of enforcement of the Reclamation Act's acreage limitations. UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, SPECIAL TASK FORCE REPORT ON SAN LUIS UNIT, CENTRAL VALLEY PROJECT, CALIFORNIA (1978). H.R. 2959 would provide $4.7 million, the FY1985 funding level, to continue the interagency drainage study program; the proposed expanded program would be funded at $12.6 million. 131 CONG. REC. H8860 (daily ed. Oct. 17, 1985).

108. The proposed study does not envision solutions until 1990 or later and will cost more than $50 million. EDF/WWD PROPOSAL, supra note 11, at 5; Letter from Thomas Graff, Senior Attorney, EDF, and Jerry Butchert, Manager, WWD, reprinted in 131 CONG. REC. H8861 (daily ed. Oct. 17, 1985).

109. EDF/WWD PROPOSAL, supra note 11, at 7. EDF would receive up to $250,000 of the $3.7 million as a grant for its portion of the work.

110. H.R. REP. 99-207, 99th Congress, 1st Sess. 36 (1985); EDF/WWD PROPOSAL, supra note 11, at 8.

111. EDF/WWD PROPOSAL; 131 CONG. REC. H8860 (daily ed. Oct. 17, 1985).

112. EDF/WWD PROPOSAL, supra note 11, at 13.

113. H.R. REP. NO. 99-307, 99th Congress, 1st Sess. 36 (1985).

114. Westlands receives 25 percent of CVP water. NRDC REPORT, supra note 27, at 29.

115. See Kahrl, The Poison Also Rises: Westlands' Unresolved Waste-Water Dilemma, Sacramento Bee, July 21, 1985, at H1; Peterson, Californians Won't Lose Cut-Rate Irrigation Water, Washington Post, Nov. 10, 1985, at A7; Peterson, California's Liquid Asset: Cities Want to Buy Imperial Valley's Water, Washington Post, Nov. 3, 1985, at A1; NRDC REPORT, supra note 27, at 22, 95.


15 ELR 10386 | Environmental Law Reporter | copyright © 1985 | All rights reserved