Water Archives · Hal Candee interview

Title

eng Hal Candee interview

Description

eng Former lead attorney for the Natural Resources Defense Council in the lawsuits leading to efforts to restore the San Joaquin River.

Creator

eng Candee, Hal

eng Holyoke, Thomas

Relation

eng Water Archive Oral Histories

Coverage

eng California State University, Fresno

Date

eng 4/8/2013

Format

eng Microsoft Word 2013 document, 15 pages

Identifier

eng SCMS_waoh_00029

extracted text

>> Thomas Holyoke: Okay. We are interviewing -- do you prefer Hal or
Hamilton?
>> Hal Candee: Hal.
>> Thomas Holyoke: Hal Candee, formerly of Natural Resources Defense
Council, and we are interviewing him today regarding restoration of the
San Joaquin River. And we usually start with just a little bit of
personal background sort of, who are you and how did you end up involved
at RDC and even ultimately here.
>> Hal Candee: Okay. Again, I'm Hal Candee and I'm a partner here at
Altshuler Berzon and five years ago I left a career of working as a
senior attorney at NRDC, the Natural Resources Defense Council, and in
1988 I filed a case involving the San Joaquin River which is the basis
for the settlement and the restoration agreement that's currently being
implemented. The background is that I was working in a water project with
a number of other staff people who were committed to trying to provide
more water for fish and wildlife in the Bay-Delta watershed in the
Central Valley and also, trying to reform the water management practices
of the federal Bureau of Reclamation so that they would -- the practices
would emphasize conservation and efficiency more and reduce the
environmental impacts. And one of the issues that came up was that the
long-term water contracts for the Central Valley Project were going to be
expiring starting in the, the end of the 1980s. The first batch were the
contracts for water diverted at Friant Dam on San Joaquin River in what's
called the Friant Division of the Central Valley Project. So there had
been a lot of discussion inside the federal agencies and also in the
environmental community about what was the government going to do when
the contracts, the 40-year contracts, expired for diversion of all the
water in Friant Dam. And, and that's what led to, to our getting involved
in this.
>> Thomas Holyoke: What was Natural Resource Defense Council's interest
in this broadly? Part of this is because some people viewing this may not
even be that familiar with the organization.
>> Hal Candee: Right. Well, the San Joaquin River is the second longest
river in the state and it's one of the major rivers of California.
Certainly the second most important tributary to the San Francisco Bay
Delta Estuary. The estuary is the largest estuary on the west coast of
North America. It's a very, very important water system, and in the old
days, of course, people could take ferry boats from, from the San
Francisco Bay all the way up to Fresno along the San Joaquin River and it
was the -- one of the most important salmon fisheries on the San Joaquin
River on the main stem. In fact, it was the largest and southern-most
spring-run salmon fishery along the main stem of the San Joaquin. It was
also an important source of water for wetlands in the San Joaquin Valley.
So there's always been a lot of interest in the San Joaquin River as a
major part of the California environment, as a major part of the Bay
Delta Watershed. The interest was also very strong because when the
federal government built Friant Dam in the 1940s and began diverting
water, it went [background sounds] from a thriving river and a thriving
ecosystem to a, a dried out river, ultimately one that dried up

completely downstream from Friant Dam and killed off the spring-run
salmon that was so important to the San Joaquin River. So that was
important to the fishing organizations, both sport fishing and commercial
fishing. It was important to the fish--fishery agencies. State Department
of Fish and Game in the 1950s had gotten very involved in trying to save
the final salmon of the San Joaquin. And it was also very important to
the national and statewide conservation community. And NRDC had been
committed for a long time to trying to reform the rules and practices in
the Central Valley Project to do a better job of protecting fisheries,
and fish and wildlife generally, and water quality; trying to restore
river systems such as the San Joaquin; and also trying to do a better job
on the implementation of our federal reclamation laws in terms of what
the contract terms or are we doing a good enough job of encouraging water
conservation, for example. In 1982 Congress had said that all of the
contracts should be examined for a possibility of -- or what are
conservation practices by customers of the Central Valley Project and
other federal reclamation projects. So our interest at NRDC was really to
focus in on the operation of Friant Dam and the implementation of these
contracts and the downstream effects of diverting so much water and see
if there was a way to bring some water back to the river and help protect
and restore the ecosystem downstream, all the way to the delta. Now we
did not do this all alone, NRDC always worked in consultation with and in
coalition with other conservation groups. And, ultimately, as we got more
and more involved in the question of the -- water contracts at Friant
Dam, we became involved in working in close cooperation with sport
fishing groups, commercial fishing groups, local conservation groups in
the San Joaquin Valley, national groups like National Audubon Society and
Sierra Club, and a whole array of folks who cared about what was
happening on the San Joaquin River and its impact on the bay delta.
>> Thomas Holyoke: And could you elaborate a bit more on why the expiring
of the contracts provided an opportunity to look into this issue?
>> Hal Candee: Well, under federal law ever since the 1970s, Congress had
made clear that when the federal government takes an action, a major
federal action, and exercises major discretion over federal projects,
federal properties, what have you, they must first look at the
environmental consequences. They must look at the environmental impacts
under NEPA, the National Farmland Policy Act, and do an environmental
impact statement, and look at alternatives. They must look at the impacts
to threaten an endangered species under the federal Endangered Species
Act. And, of course, under federal reclamation law which guides the
implementation of these contracts and the management of all of the dams
and canals of the Central Valley Project, they must also look at the
question of beneficial use; has the water been used reasonably and
efficiently under the current standards as required under state law?
>> Thomas Holyoke: And to what extent does state law apply to federal
contracts operated by the Bureau of Reclamation?
>> Hal Candee: Well, in many ways, and that is an issue that became very
important throughout the long history of this case. You ask why, why was
the expiration of contracts relevant? It was our expectation that the
government would look at the alternatives to automatic renewal in an --

EIS would look at the potential impacts to endangered species by
continuing to dewater a major river, but also would look at whether the
water use that was being provided through these contracts -- as a result
of these contract, met the standards of reasonableness that the State of
California applies to all water diverters in the State. Remember, the
federal Central Valley Project still had to apply for a state permit to
build these dams, divert the water, impound the water. And the question
of the relationship between the federal government and the state
government and the federal laws that govern the federal Central Valley
Project and the state Laws that govern the issuance of a permit or the
protection of other -- of public trust uses downstream, is an issue that
has been the topic of much, much analysis and much litigation and a lot
of laws, actually, both federal and state. So it was our expectation that
the Bureau of Reclamation should take a look at all of these issues.
Instead, when we raised these issues, the Reagan administration informed
us that they took a very different view. Their view was that the federal
government would automatically renew all of the contracts for exactly the
same amount of water for another 40 years without doing an environmental
impact statement, without looking at alternatives, and without doing in
consultation under the Endangered Species Act, because their view was
that this was a ministerial act and that there was really nothing to
discuss; there was really nothing to analyze; that the Bureau of
Reclamation was merely a trustee, if you will, of a water entitlement
that belonged to the irrigation districts and the urban districts that
received the water, and that the federal government was simply signing
its name at the end of the contract. So we pointed out that, first of
all, that's not what the government actually does. The government sits
down and negotiates these new contracts and before the government signs
the new contracts, it goes through review of many different agencies, as
a general matter. Second, the contract that was expiring said that the
new contracts would be set on terms that were mutually agreeable to the
parties. Our view was that the United States government cannot agree to
terms that violate current law, that they must look at what the current
law requires and, if the current law says you cannot cause jeopardy to
endangered species, then they can't agree to a contract whose terms will
cause jeopardy to an endangered species. Finally, we thought it was just
bad management. California had changed a lot in 40 years; the number of
people in the state, the amount of water use in the state, the concern
over fish and wildlife, the number of species that were now listed under
the Endangered Species Act and that were in crisis, the amount of water
quality threats -- all of this had changed dramatically in the four
decades since the first contracts were signed. And we thought it was just
a crazy policy and a dangerous precedent if these new contracts were just
rolled over for the same amounts without any analysis.
>> Thomas Holyoke: Is there -- was the Bureau of Reclamation and the
Department of the Interior the sole -- I'm not sure of the right word -defendant on the initial litigation or was it several government agencies
that were...
>> Hal Candee: Well, the Department of the Interior includes both, the
Bureau of Reclamation and the Fish and Wildlife Service, and ultimately
the case did include a claim against each of those agencies, the Bureau
of Reclamation and the Fish and Wildlife Service. The control of salmon

in the federal government is not at the Department of the Interior.
That's at the Department of Commerce. So, ultimately, when we had a claim
about the analysis of impacts to salmon under the federal Endangered
Species Act, we also had to bring in the Department of Commerce because
of the Nationally Fisheries Services does the analysis under the
Endangered Species Act for salmon, and is in charge of all of the marine
species. We were well aware that the districts that were receiving the
water from the San Joaquin River had diverted Friant Dam, and who were
negotiating and signing these new contracts were also interested, and so
they had come together as an association called the Friant Water Users
Authority. So we decided it would be a smart thing to do to bring them in
right at the outset. So we actually named the Friant Water Users
Authority at the outset. The individual districts, for whatever reason,
were not comfortable relying on the Friant Water Users Authority as the
defendant representing them, and they all -- not all of them, but a
number of them, 16 or 18, moved to intervene in their own behalf and in
smaller groups each with their own sets of lawyers. So the result was a
very large group of federal attorneys, water district attorneys. And then
on our side our coalition represented 14 or so conservation and fishing
organizations in a coalition of groups, all represented by the same group
of plaintiffs' attorneys.
>> Thomas Holyoke: So the initial mitigation was 1988 if I understand
correctly.
>> Hal Candee: Correct. Correct. And we filed the original claims
directly at the contracts' folks singing on the National Environmental
Policy Act, NEPA, and the Endangered Species Act. In a short time of a
couple of years after that we decided to go into the state law issues
that I mentioned, really focusing instead of the procedural issues of how
the Bureau of Reclamation was going through its approvals of the
contracts and what steps it was taking before negotiating these new longterm water contracts, focusing in on the operation of the dam and whether
that operation was in compliance with state law requirements. And in that
case we were particularly interested in the state Fish and Game code
which had been used by the Department -- the state Department of Fish and
Game back in the 1950s to raise the issue of; is there enough water being
released from the dam to keep the fish in good condition -- the salmon.
And also, had been used in the Mono Lake controversy to focus on the
impact of diverting water to Los Angeles from the streams that feed into
Mono Lake and how the impact of the downstream fisheries and those
streams was something that could be addressed through the state Fish and
Game code. So Section 5937 of the Fish and Game code is quite clear and
quite broad. It says the owner of every dam, owner or operator of every
dam in the state must release enough water to keep the fish in good
condition. Our view was that the release of zero water for the downstream
environment and the drying up of the river was not keeping the fish in
good condition at all and, in fact, had led to the extinction of the most
important of the salmon runs downstream, but was also having a negative
impact on fish all the way down to the delta, including the winter-run
salmon. And then in response to the government's argument that well,
we're the federal government, we don't care about state laws, and we
don't pay attention to those laws, we pointed out that Chief Justice
Rehnquist, at the time he was Justice Rehnquist, had written an opinion

in California v The United States, pointing out that federal reclamation
laws is a state's rights set of laws, that when the federal government
goes into a Western state and decides to build a water project, it must
follow state law, the allocation of water or the water rights system,
unless there's a clear congressional directive that's in conflict with
that. And we said not only is the federal reclamation law not in conflict
with California's water laws, there -- is clear that the beneficial use
requirement in the federal law that's been there since 1902 attracts the
state law requirements and if you look at the Public Trust Doctrine, you
look at the laws in terms of Mono Lake and other places, that the State
Water Board has interpreted that reasonable and beneficial use
requirement to include protection for fisheries. So the California Courts
had already held that the state Fish and Game code 5937 which was used in
Mono Lake was part of this public trust doctrine [noise] that was part of
the fabric of state law protecting downstream users and downstream public
trust resources, and in our view the federal government had to comply
with that in operating the Central Valley Project that was holding a
state permit.
>> Thomas Holyoke: Did the enactment in 1992 of the Central Valley
Project Improvement Act end up being part of this, as well?
>> Hal Candee: Yes, in multiple ways. The people working on the Central
Valley Project Improvement Act were quite aware of this litigation and -for example, when we filed our case, the plan for the entire Central
Valley Project North and South was to renew every contract for 40 years,
and that's what they did at Friant Dam when we filed our lawsuit. In the
Central Valley Project Improvement Act, which we now call CVPIA, in 1992,
congress changed that to 25 years and determined that to lock in a water
quantity or any other terms for more than 25 years, given how fast
everything changes in California, was not wise and would not lead to
proper protection of the resource. We had asked for an environmental
impact statement on the renewal of contracts in our lawsuit. The
government had said, "No, we're not going to do that." In CVPIA, congress
said, "You must, you the Bureau of Reclamation must do an environmental
impact statement on all renewals of long-term contracts." We had said
that the Bureau of Reclamation must obey Section 5937 of the Fish and
Game code, in its operations of the project. They had said, "No we're
exempt from that law." In 1992 congress said explicitly [knocking sound],
"From here on out the Bureau of Reclamation must come into compliance
with all applicable federal and state environmental laws, including,
Section 5937 of the Fish and Game code and any orders of the State Water
Board." So you could see the influence of the case on the Central Valley
Project Improvement Act. Oddly enough, after the act was passed, then
some of the defendants tried to start using the CVPIA against the lawsuit
to try to shut it down and say, well, congress has now spoken so we're
done. This one's not the case. Let's just dismiss the whole thing and not
keep going with the lawsuit. So that led to a lot of briefing on what the
actual impact of CVPIA was on this lawsuit. And -- the result of that was
a number of important decisions by the district court in Sacramento that
held that the CVPIA had not pre-empted the lawsuit, had not looted out
the lawsuit, and in fact had reinforced a number of the themes in the
lawsuit about the importance of complying with the Endangered Species
Act, complying with NEVA, and complying with Section 5937.

>> Thomas Holyoke: So they didn't require you then to rethink your
litigation strategy and refile the cases while the cases were still
considered live I guess.
>> Hal Candee: Yeah, the cases were -- I mean, the defendants would have
been thrilled if the case had [laughter] become -- had died at that
moment. But, no, we did have to amend the complaint because the law had
now changed and we had to take into consideration. Also, another thing
that kept happening was they kept changing administrations, and each one
would change its management of the Central Valley Project and its
management of the Friant system. So one administration said "No, we're
not going to do any NEVA compliance." The next administration said we're
going to do partial NEVA compliance. We're going to do an environmental
study. And we said, "What's that? It's not even mentioned anywhere in
NEVA." Say, well, it's going to be sort of an EIS except we're going to
go ahead and sign the contracts first and then do the study after the
fact. One administration had said, "We're not going to do any
consultation under the Endangered Species Act." The next one said, "We
are going to do a consultation under the Endangered Species Act and
whatever -- we are going to refuse to consider whether releasing water
from Friant Dam might actually help the salmon downstream, and the salmon
in the delta, because it's too late to do anything about it." To which we
pointed out that every year [knocking sound] they divert new water.
[Laughter] That's water that could be going down there. Anyway, so there
was a need to adapt the litigation to these changing factors, both in
terms of the law and congress and the different federal administrations.
I should note that throughout this period the State of California had
different administrations and different people -- was attorney general of
California and, yet throughout, we received the benefit of amicus briefs
from the state in support of NRDC's position in the litigation on a
number of issues. During the early days it was on some of the NEVA issues
and the Endangered Species Act issues. But later on the State Water Board
came in as an amicus and issued a number of amicus briefs saying that the
federal government is required to comply with state law and the orders of
the State Water Board and the Public Trust Doctrine protections in the
state water law of California, and that it's not pre-empted by CVPIA or
by any other federal law. And that turned out to be very, very important
because the federal judge felt that it was helpful to hear from the
lawyers representing the state's water board what they thought state law
provided. And the court mentioned that a number of times at different
hearings.
>> Thomas Holyoke: Now these cases are filed in federal court, in the
Eastern District Court?
>> Hal Candee: Correct.
>> Thomas Holyoke: Okay. And were all the cases in the Eastern District
Court, federal court?
>> Hal Candee: Well, I don't know what you mean by all the cases. There
was one primary case, the NRDC case, which did go up to the court of
appeals. However, the -- some of the contractors did try a strategy of a

countersuit at one point. For example, the Madera and Chowchilla
districts thought that because they were there earlier than the other
districts, and because Madera, I think, even owned some of the land that
was ultimately used for the site for building Friant Dam, and because
they had a separate agreement with the United States that allowed for the
purchase of that land and the assignment of some of the historic water
rights, that Madera had rights that were more senior, more superior, and
that they should be addressed separately. And so they actually brought
their own preemptive lawsuit called Madera v Hancock and that was
litigated in front of the same Sacramento court. And that also went up to
the court of appeals. So there're separate opinions on that -- on those
cases. But the primary case was NRDC v [inaudible] and Patterson and then
it ultimately became Rodgers which is the name on the settlement.
>> Thomas Holyoke: Okay. I guess there's going to be an opinion at one
point now that in addition to all of the litigation work that NRDC and
some of the organizations were also pursuing -- I guess you might call it
an executive branch strategy to -- trying to work on some kind of an
arrangement or settlement with the Department of the Interior through the
1990s or...
>> Hal Candee: There were two attempts at settlement, one ultimately
unsuccessful and one ultimately successful. In both cases it was
initiated by the Friant farmers or the Friant Irrigation Districts. The
first attempt was initiated after the case went up to the court of
appeals and NRDC won the unanimous judgment that the renewal of the
contracts was subject to the Endangered Species Act, the Endangered
Species Act requirements had been violated, that the judge was correct in
invalidating the contracts that had been signed without any compliance
with the Endangered Species Act, that the argument that the Central
Valley Project and the Friant Dam were exempt from the state Fish and
Game code Section 5937 was wrong, that the judge was correct to say that
it was not preempted, that the judge was correct to say that even CVPIA
requires compliance with the Section 5937. After we won that very, very
big victory in the late 19 -- in the 1990s, the phone rang. I think it
was the day after the decision and it was the representative of the
Friant Water Users Authority saying, "We're ready to talk settlement."
And that began a long process -- multi-year process that benefitted from
support from the State of California which was eager to see the Friant
districts and the NRDC Coalition sit down and try to work out their
differences. And a lot of good work was done analyzing what it would take
to restore the river and what the needs were of the riparian vegetation
for example, and issues such as how much water it would take to recharge
the groundwater array under the river, or what the temperature issues
might be. There were a lot of issues that were of interest to both sides
and we pursued a combination of joint investigations and joint research
on how to do this along with actual negotiations of what would the terms
and conditions be of a possible settlement.
>> Thomas Holyoke: Is that -- when that's going on in this kind of
settlement discussion, all this research is part of a settlement
discussion that's going on, does that mean essentially, in court nothing
is happening with the case, that all work in court is, I guess, suspended
while these settlement talks are going on?

>> Hal Candee: There's no automatic rule for that. I mean sometimes
people –- begin settlement talks on the eve of a trial and they put off
the trial because they can't [noise] [Inaudible] give up, but many people
are talking potential settlement while the case is going on. Other people
put a case on hold while they talk settlement. In this case, the case
continued for a while, and I think at some point both sides were
convinced that this was a serious settlement effort and so there was a
joint motion to the court asking for the case to be stayed pending the
outcome of the settlement talks. And that, of course, put the NRDC
coalition at a disadvantage since the Friant districts were getting all
of the benefits of the status quo, all of the waters continued to be
diverted under the old contracts, and they were continuing to get all of
the benefits they got before while these talks were going on. All of the
victories we were getting in court were suddenly stopped while we waited
for settlement talks. That was a pretty big leap of faith on the part of
the plaintiffs to engage in these settlement talks. But we felt that it
would be good to come up with a consensus settlement if we could do it,
and we were eager to try to work it out so that they would agree to a
restoration of the river. After a long period of time and a lot of good
faith effort the -- including mediation by the U.S. Court of Appeals -the plaintiffs were prepared to work it all out and have a settlement.
But they could not get full -- complete agreement on the side of the
Friant districts. The government decided not to go through the elaborate
process of deciding the yes or no to the settlement until they saw
whether or not the Friant parties and the environmental plaintiffs were
prepared to settle them. So when the Friant parties said "No, they would
not settle," that was the end of it. At that point we had to gear up the
litigation again, and that led to challenges against the new set of
contracts that had been negotiated by the Bush -- I mean the Clinton
administration at this point -- the post CBBPIE contracts -- the 25-year
contracts, and we also continued to pursue the Section 5937 claim. And,
actually, that led to a decision by the district court in Sacramento in
2004 which turned out to be a major decision on the liability issue which
held that the operation of Friant Dam and the dewatering of the river had
been a violation of state law, and because state law is mandatory as a
result of federal law, it was also a violation of federal law, and so the
court said, "This continued operation of Friant Dam to dewater the river,
and release nothing for the benefit of the fish -- is a violation of
both, state and federal Law."
>> Thomas Holyoke: I wonder, which judge was this in front of? This
judge...
>> Hal Candee: Lawrence Karlton.
>> Thomas Holyoke: Yeah.
>> Hal Candee: K-A-R-L-T-O-N.
>> Thomas Holyoke: Okay. And because of all these intricacies, is this -I mean, basically, this was 18 years of litigation.
>> Hal Candee: Right. It was.

>> Thomas Holyoke: Like...
>> Hal Candee: Well, through the '80s to 2006. We signed the settlement
in 2006, so we put a stay -- excuse me, [noise].
>> Thomas Holyoke: Oh sure, sure. And then, hopefully, how did, how did
Senator Feinstein's Office become involved in -- the Senator, herself,
and why was she necessary to come in and help with the settlement?
>> Hal Candee: That was something that the finance folks caused to
happen. Specifically, I believe -- and I know you even asked that
question of Senator Feinstein's staff and I don't know if you have the
answer to it, but I defer to them obviously, but, our understanding was
that after we won the big decision in 2004, the judge said, "Okay, now
that I've ruled that there's been a violation of law, we have to decide
what the remedy is. Now that I've ruled that Friant Dam is subject to
Section 5937 which requires releases of water to protect the fish, I have
to decide what release of water." And he warned everybody that that was a
complicated issue; that this had been -- the drying up of the river had
been going on for many decades; and it was going to take a long time and
an epic trial, and he knew that everyone was going to need to get their
expert witnesses ready and have depositions and be prepared. And so he
set a trial date for 2005 in -- I think it was February 14th -- and the
parties were told to get going and getting ready for trial. Well, of
course, the first thing some of the more political people in the Friant
community -- Friant Water Districts did was to -- instead of preparing
for trial, they went to Washington and asked congress, "Is there anything
you can do to deal with this trial we're about to go into?" My
understanding, and I don't know how much this is out in the public
record, but my understanding is they first went to Congressman George
Radanovich, the Republican from the Fresno area who represented a lot of
the water districts. And he said that he would be happy to try to make
the lawsuit go away by some act of congress. But he couldn't do it alone
and he would need the help of Senator Feinstein in the task. So I think
he was the one who sent the Friant folks to Senator Feinstein. Maybe
there's more to it than that, but that's certainly what we understood. At
some point, Senator Feinstein told her staff to contact NRDC about what
was going on and NRDC's response was very clear. If you're suggesting
changing the law just to undo the victory that we've had in court after
all of these years, we think that's a terrible idea and that would be
terrible for the implementation of the Endangered Species Act, the
implementation of the federal reclamation laws, and the implementation of
California state laws. After all, this is the state law victory that we
have here and it would be terrible if the congress overturned that. On
the other hand if what the senator would like is want the parties to
settle their differences, and make the litigation go away by mutual
consent in a consensus form -- as long as that's based on restoring the
river and restoring the salmon populations, so long as it's a real
settlement and not a settlement to just end the litigation, we're happy
to talk about that. As so she really took the lead in urging the parties
to sit down and talk directly about what's it going to take to resolve
the case.

>> Thomas Holyoke: How many -- those negotiations went on for a matter of
years as I'm fully [inaudible]. A couple of years?
>> Hal Candee: No, one -- for one full year. What happened is basically
in September of 2005 we began the process of figuring out whether there
was going to be a settlement process and by October 1st, I think, the
settlement had begun -- of 2005 -- the settlement talks had begun. First
is was just Friant representatives and NRDC representatives. After a few
months, Friant and NRDC were pretty much on the same page but we knew
that you couldn't do any of this without the federal government there,
the owner of the dam, and they delivered the water. And so we went to the
federal government and asked if they would be willing to talk. And, of
course, they said, "Well, we have a trial coming up and we are not
comfortable beginning the settlement approximately with the trial coming
up." So the parties jointly -- all three sets of parties, went to the
court and asked for the trial to be put off and the whole case be stayed
pending settlement talks. And the federal government started to sit down
with both sides and discuss settlement. What took Friant and NRDC, you
know, three months to talk about, ended up taking a lot longer when you
got the Department of Justice, the Department of Interior, the Department
of Commerce, the Fish and Wildlife Service of the Bureau of Reclamation,
all represented there and started dealing with some issues about whether
or not we would need federal legislation for the Bureau of Reclamation to
do everything that Friant and NRDC wanted them to do, to make the
settlement meaningful for both sides. After we had reached the basic
conceptual agreement with those parties we, of course, wanted to bring in
the State of California because even though they weren't a formal party,
they had been an active amicus party and they also had an enormous
interest in what happens to the second longest river in the state, and
the second major tributary to the bay delta. So that began a series of
discussions with the state. We also were constantly reaching out to third
parties, [inaudible] third parties, so we were reaching out to the
landowners along the river, to the exchange contractors who used to have
the historic water rights, on the river and had gotten a CDP supply in
exchange. We reached out to other major water interests -- Westland's
Metropolitan Water District, state water contractors, delta farmers. We
reached out to just a whole array of interests out there, both before the
settlement was done and also as we were getting near the end, and then we
kept briefing the members of congress; the delegation in the House which
included both people -- some pretty conservative people in the San
Joaquin Valley, and some pretty progressive people in the Bay Area, and
all of them had a very strong interest in the outcome of this case; and
we briefed Senator Boxer and Senator Feinstein.
>> Thomas Holyoke: By expanding some of the negotiations to include so
many individuals, so many government agencies and other parties, did that
make it increasingly harder to get any kind of an agreement?
>> Hal Candee: It was always hard. [Laughter] It was excruciatingly hard.
I mean, there was a -- just an amazing number of issues. Some of these
were issues that nobody had ever tackled before. Some of them were very
hard because we didn't exactly know what the answer would be, you know,
whether it's a scientific issue or a water management issue or whatever.
There were also -- everything is inter-connected and so the desire to

have -- you know -- it was our shared intent to have no significant
material and tax on any of the parties and sometimes not everyone
understood how that might play out or not that would happen. So we wanted
to get -- run that to ground and inform ourselves. We met with the Levy
District, we met with the delta interests, we met with the State Water
Project -- how they operate their part of the system, and we just wanted
to make sure we weren't, you know, having impacts on the furk [Assumed
spelling]places, that re-licensing process on the tributaries for
example. So, yes, there was an issue there. I think we didn't need to go
meet with anybody. We probably didn't need to do that. But both sides,
the NRDC folks and the Friant folks felt like well, they can have an
interest eventually at some point, and they're going to want to be heard,
and we'd rather reach out and find out what their issues are ahead of
time and see if we can address them on the front end before we have
figured out our deal because it's going to have an impact, you know, if
they ask, well, could you do this, could you do that? We wanted to make
sure to bring that back to those sites. But I also would say that
congress was following this very closely, and Mr. Radanovich was the
chair of the water -- some committee in the house and Senator Feinstein
was a very strong advocate for California water in the U.S. Senate, so we
were trying to keep all of those folks briefed, as well.
>> Thomas Holyoke: And I suppose that another reason for bringing in all
these different parties -- because at any [noise] point, believing that
they have a stake in this, they could have themselves filed lawsuits to
stop the whole settlement.
>> Hal Candee: They could try, and I think that was part of our hope,
too, was that if they had legitimate interests or issues they would raise
them with us on the front end so we could try to address them and find
out more about what their concerns were, and see if there's -- and there
were a number of protections to third parties that were added late in the
game as a result of those direct -- you know, that outreach to those
other parties. They would ask for this protection or that protection and
we would provide it. The final negotiations, or what we thought would be
the final negotiations, were in Senator Feinstein's office where we, at
that point had a completed settlement document between the parties that
had been submitted to the court in September. But Senator Feinstein said,
"Well, if you want to get a California water settlement to be reset,
you're going to need Senator Boxer and me to lead that fight," and we are
concerned that there are some parties out there who, even though you've
reached out to them and met with them, they have expressed concerns to
us, to Senator Feinstein, and they've expressed concerns to the chairman
of the House Resources Committee -- was a guy named Richard Pombo -- and
he had heard both from his delta constituents and from his survey of
Republican allies of the San Joaquin Valley, and so she set up a series
of negotiations with many parties. So we had all of the parties of a
litigation. We had the State of California, we had all of these third
parties who were not in the litigation but who had expressed an interest,
and then we had five members of the House of Representatives and two
members of the U.S. Senate, all sitting around the table. So Senator
Feinstein thought it would be best to have me sit directly across from
Richard Pombo. [Laughter] And we had those discussions. In any case, the
result of those -- and I think her press lead said that there was a

hundred hours devoted to those negotiations. The result of that was to
change the legislation approving the settlement called the "San Joaquin
River Restoration." So enact from the version that the lawyers for all of
the parties had proposed. As a result of these separate additional
negotiations, more provisions were added to it.
>> Thomas Holyoke: Was this the first time a major river had been rewatered essentially?
>> Hal Candee: No. There have been other attempts to do that, and
certainly that's sort of the whole theory of the Mono Lake cases of, you
know, restoring flows. But this -- everyone seemed to agree that this was
the biggest and most dramatic Western -- restoration program in terms of
going from completely dry -- no salmon, to wanting year-round flows and
bringing back the salmon, reintroducing the salmon that were there
before. I mean, there may be other precedents here and there that -we've heard about some in New Zealand, for example, but -- and there's
certainly other rivers, both in the North -- the delta and south of the
delta where people have done some pretty dramatic restoration efforts.
But this one, as far as we can tell -- I know that Secretary Kempthorne,
the interior secretary, issued a statement calling it the most important
and dramatic restoration effort in the West.
>> Thomas Holyoke: Why was federal legislation required for this?
>> Hal Candee: Well, we didn't actually believe that it truly was. We
thought there was a way they could have done it with a court order and -but I believe the federal government wasn't certain that they would have
the full authority to change their operation of Friant Dam, reduce the
deliveries under the contracts, increase flows to the delta, and go to
the State Water Board and obtain a permit to keep the flows in the
streams so nobody could take, you know, the water as soon as it was going
by, begin recirculation/mitigation programs to help the Friant farmers do
all of these other things, and spend the money that it was going to take.
They would need to be authorized to spend tens of millions of dollars to
carry out these restoration programs. A lot of the big expenses were
necessary just to reduce the amount of water that Friant farmers would
have to give up. You could do a lot of this just by turning on the tap
and letting more water -- for example, a fish passage -- but it's cheaper
ultimately and certainly less of an imposition on the Friant customers,
the Friant contractors, if you take steps to improve the channel and
improve fish passage and stream diversions and do these other measures
that will mean you don't need quite as much water to move the fish in and
out. And so we were all committed to doing that, but all of that took
money, and if we wanted the federal government to spend that money, to
carry out those measures, the federal agencies felt they needed the
authorization to do that and to spend that money that way, and also the - some additional funding support from congress. Now the State of
California very much wanted -- the Schwarzenegger administration very
much wanted the settlement to succeed. Governor Schwarzenegger wrote
multiple letters. He had his cabinet members commit $200 million of state
money from -- there were a number of bonds, flood bonds, and the water
bond in the works and they had a provision in the water bond explicitly
mentioning the settlement and committing a hundred million right off the

top. So, the state was also very involved, but there was a question about
how the federal government and state government would manage this jointly
and what the provisions were for that, and they ended up signing a
separate memorandum of understanding between the state agencies and the
federal agencies. So there were many, many pieces to this.
>> Thomas Holyoke: Okay. So we get a -- the settlement is finalized in
2006 and I think the legislation passed in '06 or '07?
>> Hal Candee: No. The settlement was signed in 2006. It -- there was
then a court hearing and then the court approved the settlement, and then
the litigation and -- issued an order ordering the federal government to
carry out the settlement as written. The -- we then went to congress.
They tried to move the bill right away, that fall. But there weren't that
many legislative days left and they weren't able to get it through the
House, so it was reintroduced the next year with Congressman Costa, the
lead author in the house instead of Radanovich, and then with Senator
Feinstein and Senator Boxer as the lead authors in the senate. The
original bill, by the way, that was introduced in 2006, had Richard Pombo
as Chairman of the House Resources Committee and George Miller as the
former chairman of the [laughter] house, both as original co-authors, and
I kept asking, "Has anyone else ever seen a water bill that had Richard
Pombo and George Miller both on the bill?" And Radanovich and Boxer and - it was very interesting to see. But that was the kind of settlement it
was. There was bi-partisan support. We had the Bush administration,
negotiated the settlement and signed it, testified in favor of it, and
asked the judge to approve it. And agreed to the order ordering them to
carry it out -- the Bush administration. The Schwarzenegger
administration totally supported it, filed a declaration in support of
the settlement, and the court committed $200 million of state money to
help carry it out, and testified in each of the hearings that were held
in congress in support of it. We had all of the 28 districts that
received water; all 28 contractors from Friant supported it. There was no
dissent within the Friant -- of the Friant water users, the Friant
districts. So, very troubling to find that some people came in later on
and claimed that, you know, well, this was not, you know, a balance; this
was not bi-partisan. It was like -- it was completely bi-partisan,
completely balanced. It was -- you know, it had every interest. We had a
letter from the Metropolitan Water District. We had a letter from a
number of different tributary districts. I mean it was really widely
supported.
>> Thomas Holyoke: Had -- and I don't know when you left NRDC but had you
and NRDC then carefully watched the implementation of the settlement and
the work the Bureau of Reclamation or agencies have done to, you know,
get the river ready, the test releases, and the preparation for fish
restoration back? In fact, that's when it's starting to happen now.
>> Hal Candee: Yes. Both Friant and NRDC have remained very actively
engaged. They have certain rights and responsibilities under the
settlement to do that. Each of them has a representative on the technical
advisory committee that advises both the implementing agencies, as well
as, the restoration administrator who's appointed by the court. So, NRDC
and Friant have been extremely involved in the process of settlement

implementation even though the agencies, the federal agencies and also
the state agencies, do the day-to-day work. When I left NRDC five years
ago, they asked me to continue to do legal work on behalf of the NRDC
coalition through my firm here, and so I do represent them. There hasn't
been a lot in court. There hasn't been a lot of proceedings there, but we
do occasionally have meetings with the government or meetings with
Friant, or meetings with third parties about how the settlement is going.
We are certainly filing annual reports back to the court about it, and so
-- yeah, I have been staying involved. NRDC is much more involved and the
NRDC staff people are following it more closely, but I have tried to stay
somewhat involved.
>> Thomas Holyoke: They've been satisfied with progress?
>> Hal Candee: Well. It's very frustrating, frankly, that it's taken
longer than it was supposed to. Some people say, "Well, the legislation
took until 2009 to be signed into law. And that's three years later than
2006." But, in fact, the court approved the settlement in 2006, ordered
interior to begin implementing it immediately in September. But in the
fall of 2006, interior agreed that they would begin implementing it
immediately in 2006, and actually started allocating funds immediately,
and every year beginning in 2006 for implementation. So our view was that
even though it took longer to get the settlement legislation passed than
we liked, and maybe some of the authority they were looking for wasn't
completed until that legislation passed, we felt that the settlement was
supposed to be implemented from day one and, in fact, all indications
were that they were in some respects doing some of the planning work and
the environmental review. So the delay has been frustrating. There have
been things like, you know, the State having an enormous financial
problem, then the federal government having an enormous financial
problem, and we've had drought years, we've had all kinds of other things
going on that have made it more complicated. There were a number of
landowners who were in the room when Senator Feinstein asked, "Is [noise]
everybody okay? Do we [noise] have a deal? [Noise] Is this legislation
ready to go?" And they all said "Yes." A number of them who started
raising concerns that were not raised at that time, and so that slowed
the implementation down again, that there was this concern that, well,
even though they said it was okay, now they're raising new issues, and so
the Bureau of Reclamation has gone out of its way to accommodate every
third party, and has gone out of its way to spend more money, more money
studying every possible seepage issue, or levy issue, or other potential
issue that could be out there, and they even asked Congressman Cardoza
and Congressman Costa to work for changes in the legislation in 2008,
which Senator Feinstein agreed to only reluctantly after consulting with
the federal government and the prime NRDC parties.
>> Thomas Holyoke: Okay. -- Anything else you'd like to add?
>> Hal Candee: Well, even though it hasn't gone as fast as we all wanted,
it is still on track and they are already, you know, putting -- bringing
the salmon back. It's slower than it should be and we're not happy about
that, but there's a lot of agencies involved and, you know, we know there
are things like sequesters and other things that are preventing agencies
from doing everything that they want to do. But the fact is that I

believe the settlement continues [noise] to move forward. A lot of people
who have raised concerns have been meeting with the federal implementing
agencies and getting their concerns addressed. So you haven't seen the
great big gridlock [noise] that some people had predicted. And so I think
it has been a bit of a surprise to some of the critics that despite all
of the things that go on in California water, where often conflict is the
reality rather than progress that the settlement does continue to make
progress. And I feel like that's partly because we took the time, both
Friant, and NRDC, and the government as well, to reach out to all of the
interested parties, find out what their concerns were, try to write in
protections, but also because everyone knows that this is something we've
got to do. The days of drying up rivers and killing off salmon, to divert
a hundred percent of a river to people who get a huge federal subsidy for
their water -- those days are just gone, and I think everyone recognizes
that. So, it's interesting to see. We're not quite there yet but -- it
hasn't been fully implemented, but it's heading in the right direction.
>> Thomas Holyoke: You just want [inaudible]. Is this is a model then
that you might recommend for restoring other fish populations in other
rivers? Historically, the other rivers are quite as dry as the San
Joaquin was or fully...

>> Hal Candee: No. It has already served as a model and then a lot of
people have looked to it. A lot of other places, they are checking out
some of the provisions. Some things work better than others. Some of the
things are not working the way we expected them to, and so, you know, if
somebody came to me and said, "What's the blueprint?" You know we might
tweak a few things here and there. But I think in general the idea of,
you know, the basic formula which is once the Court has decided that the
status quo violates the law, and there must be change, and there must be
a restoration of the river and a restoration of fish and wildlife, can
the parties work out their differences so that they are -- there is a
consensus-based settlement going forward? A restoration program that all
parties can support with money from lots of different sources, water-user
fees and some state money and some federal money -- yeah, I think that is
a model and I think that's what the Bush administration kept telling
people. When they signed on to it they thought this would be a model in
all of the Western states they deal with.
>> Thomas Holyoke: Thank you very much.
>> Hal Candee: You're welcome. Thank you.
[Silence]

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