Water Archives · Diane Rathmann interview

Title

eng Diane Rathmann interview

Description

eng Water lawyer from Dos Palos who was instrumental in creating the Delta Mendota San Luis Joint Powers Authority to operate the Delta Mendota Canal and the CVP Delta pumps in place of the federal government.

Creator

eng Rathmann, Diane

eng Holyoke, Thomas

Relation

eng Water Archive Oral Histories

Coverage

eng California State University, Fresno

Date

eng 7/7/2015

Format

eng Microsoft Word 2013 document, 17 pages

Identifier

eng SCMS_waoh_00042

extracted text

>> Thomas Holyoke: We are talking to Diane Rathmann today and we're going to
start off with a little bit of a personal history. Are you from the Valley?
>> Diane Rathmann: I am from the Valley. I was born and raised in Dos Palos.
My maiden name was Van Atta. My father was a member of a law firm in Dos
Palos and I returned to that firm when I graduated from law school and have
been there ever since, picking up on his practice, representing family
members in all sorts of matters but particularly agricultural matters but in
particular representing water district clients. Then - also then the San
Luis and Delta-Mendota Water Authority has been my client for, since its
formation. So my family was not a Valley-native family and not a farm
family. They came to Dos Palos as teachers along with most of their friends.
My dad had been a terrible asthmatic, had grown up on the coast, and came to
the Valley seeking two things: a drier climate and ducks. And because of his
love of duck hunting, he decided to locate in Dos Palos and he and my mom
had teaching jobs. And there was - there were several people who had come in
that capacity, the first of those for the law firm was named Tip Linneman.
He'd come to Dos Palos and tired of teaching, and I don't know exactly when
or how, became an attorney. And then he started recruiting people out of the
teaching ranks. He recruited the second partner, whose name was Joe Burgess,
who was a Cal History professor and had been down in the Valley, and he
became a partner. The next one was Jess Telles, who was not a teacher. He
was a local boy who'd gone to law school and joined the firm after some
initial other practice. But anyway that's kind of how our firm started
building and it was the snatching of these teachers who had been teachers
and coaches, most of them not highly successful as coaches, who got grabbed
by Tip and put into the law firm and built this. It started in about 1937.
>> Thomas Holyoke: Did - they didn't already have their law degrees, I
assume, when they were teachers.
>> Diane Rathmann: No. My dad, for example, went to San Francisco State
during the war because he, his asthma, was not able to be in the military,
and he would catch the train in Southtown and ride the train up to San
Francisco during the week and stay with family members while he went to
school. I'm sorry; it was University of San Francisco Law School that he
went to, not San Francisco State. And then he would ride it down for the
weekend and spend the weekend with my mom and me, because that was even
after I was born that he was still completing his law degree. So Tip kind of
recruited these guys, sent them out to get their law degrees, and put them
to work. And led to a lot of development of the community and especially of
the agricultural and water community in the area.
>> Thomas Holyoke: Did your dad primarily practice Water Law? Or something
that could be called Water Law?
>> Diane Rathmann: Yes, and just to be clear, I always say I'm not really a
Water Lawyer because our focus has been on the agricultural districts who
serve water, who are really local government agencies, rather than water
rights law, which is classic, in my mind, Water Law. And of course we become
familiar with a wide variety of water issues, but because our area is served
primarily by water under contract, the direct Water Law disputes that you
hear about and that go on before the State Water Resources Control Board are
not really front and center part of our practice. Now, for the Water
Authority at this time, given all of the regulatory activities in front of
the State Board, Water Law is very important and they have many good Water
Lawyers, but I've been more the backup counsel kind of person.

>> Thomas Holyoke: So would your father then have been an attorney helping a
lot of these water and irrigation districts form?
>> Diane Rathmann: Yes. They began with Tip Linneman. I looked and saw that
Panoche Water District was formed in 1950 by Tip, and I ran through the
records and saw that our firm has formed Laguna Water District, Eagle Field
Water District, Panoche Water District, Pacheco Water District, San Luis
Water District, and probably some others that I have forgotten. But these
are very - some of them are very, very small; others are - San Luis is about
55,000 acres, I think. Panoche is about 38,000 acres. So relatively small
districts immediately outside the area. Now, Dos Palos itself is within
Central California Irrigation District, which is the older district that has
- it is an exchange contractor and, although my dad worked for CCID for
many, many years, we did not have anything to do with the formation of those
older districts. But the smaller ones that came along with the Central
Valley Project, we had a great deal to do with pretty much everybody north
of Westlands other than Broadview, up to Los Banos, not the far north ones.
>> Thomas Holyoke: Okay. And you were inspired by your father to become a
lawyer as well.
>> Diane Rathmann: I was. I had - I had gone to Stanford, come out with a
B.A. in Spanish, of all things, entered into an unsuccessful marriage and
went off to a different land and came back and said I need to do something,
what can I do, well, I'll try being a lawyer. So I went to UCLA Law School
and completed that and came back and joined my dad's practice. And you asked
about his practice. It was a general practice. In the old days, the practice
was very, very general. The attorneys did Criminal Law; they did a lot of
trial work. When I first came, we still did domestic law and dissolutions of
marriage. That, you know, has become so specialized that we wouldn't touch
that anymore, but in the old days people did everything. But developing this
interest in districts became an important part of the practice and also in
the people who were farmers in the districts. We had traditionally and still
have clients who were generation after generation farmer and particular out
in the plains - what we call the plains area - out west of Dos Palos in the
areas that now are Panoche and Pacheco and San Luis and Eagle Field. And so
we worked both for them and for the districts. It was - Tip Linneman was
retiring about the time that I came on and, to my great joy, he asked if I
would start working on Panoche Water District and Panoche Drainage District,
and that's where I began working in the water field.
>> Thomas Holyoke: About what year is this?
>> Diane Rathmann: Probably around 1980. In '81, I began the first work and
then - I know the Reclamation Reform Act of 1982 had passed just shortly
after I started the work and the first big amount of work that I did related
to learning about that, learning about all the changed Reclamation Law
rules, having to learn them, working, trying to help develop the regulations
representing the clients when they interacted with the Federal government,
trying to make sure the regulations were workable and fair and something you
could live with.
>> Thomas Holyoke: That would be dealing with a lot of the acreage
limitations?

>> Diane Rathmann: That had a lot to do with acreage limitation. It changed
the acreage limitation, and the interesting thing is in the old law, parties
could only own 160 acres of land and a couple could own 320 acres of land,
but that was per water district. So often families owned water in many water
districts in order to make a slightly more substantial farm. Typically,
farms in this area are not massive farms as one hears about farther south.
But they might be 1,500 acres is a family farm up to maybe 3,000 acres is a
family farm with multiple families involved. So then with the new law, the
acreage limitation became 960 acres and, but that was west-wide no matter
how many districts. So organizations - there were all sorts of rules and
regulations. Organizations had to be changed in their structure and land
changed hands to some extent and to some extent just the mechanisms for
farming changed, and everybody accommodated themselves to that new
requirement.
>> Thomas Holyoke: So that was - that comprised most of your early work.
>> Diane Rathmann: That was much of my early work, yes.
>> Thomas Holyoke: And bringing people into compliance with the 960-acre
limitation, did that end up requiring a lot of people to sell off acreage
they had in excess of 960 acres? Was there a lot of that happening?
>> Diane Rathmann: Not a lot. Mostly - I mean, that had happened already
with the 160-acre limit. There had been recordable contracts. I actually
ended up only handling one of the last recordable contracts in our area
where there wasn't a secretarial-approved sale of land, and that was under
the old law. But by the time the 960 came, it was more changing
organizations to accommodate the new requirements on kind of cross-counting
- what a partnership could own, what individuals could own. If you had a
prorated interest in a business entity that counted against your individual
[sic] entirement...entitlement. The entity had to qualify, the individual
had to qualify, and so there was an awful lot of shuffling around of things
to try to meet that requirement. But they're not in our area because the
farms weren't so large. There really wasn't a lot of wholesale selling off
and changing of land. I think sometimes - I think well after that period I
seemed to notice that in a district like Panoche, for example, where there
had been a block and would've been always in compliance, but over time there
had been divisions. So that say there needed to be more service connections
than there originally were, and part of that was a matter of efficiency and
part of that was a changing ownership of the land over the years.
>> Thomas Holyoke: Okay. And that would've been work for individual
landowners and you said that most of your work, though, was actually with
irrigation and water districts.
>> Diane Rathmann: Yes.
>> Thomas Holyoke: What sort of work does a lawyer do for an irrigation and
water district?
>> Diane Rathmann: Well, you can do any kind of work, but for one thing
there is called General Counsel work. There's the Brown Act which all
meetings must be in compliance with, so there's advices on how to provide
notices and how to get out the agendas, what they must contain, how the
meeting must be run to comply with that act. There's the Public Records Act
which allows people to come in and request records that have to be complied

with and which can, ordinarily are used sort of as weapons by people who are
looking for this or that rather than just for general information. So
districts may be allowed to exempt some things and may want to do that, so
advice has to be done on that. So one is attending board meetings, giving
guidance before and after the board meetings. We have to comply with the
California Environmental Quality Act, or CEQA, and in these smaller
districts there is not a large staff to handle any of these things, so the
attorney often provides services like advising on CEQA compliance and
helping to locate consultants like Pro and Pritchard or whatever other
consultants may be doing that type of work.
>> Thomas Holyoke: Actually, do many water and irrigation districts - the
small ones like Panoche - even employ counsel? I mean, have their own staff
counsel?
>> Diane Rathmann: Oh, no. No. It's almost all outside counsel for these
small districts. In fact, only recently I had been General Counsel to the
San Luis and Delta-Mendota Water Authority since its formation, but I
recently stepped down and they now have inside counsel who is General
Counsel. I remain outside counsel and I'm still many of those same things.
>> Thomas Holyoke: We're actually most - did your firm have most of the west
side water and irrigation districts as clients?
>> Diane Rathmann: Yes, a large number of them. Again, this is because these
are landowner districts. That's another anomaly about them. They were formed
by landowners for the benefit of the landowners, and so landowners who are
our clients then would ask us to represent them concerning the district. And
we did represent both and I think we could do that appropriately, so that
has been the practice.
>> Thomas Holyoke: Did you do legal work at all regarding, say, the
contracting of water between these districts and, say, the Bureau of
Reclamation?
>> Diane Rathmann: Oh, yes. Again, in about 1993, the first of the long-term
CVP contracts began to expire and under new laws and actually the CVPIA, we
had to enter into new contracts. However, environmental work had to be
completed before the new contracts could be entered. There was this huge
system of reclamation performing a basic environmental document which was
called the Programmatic Environmental Impact Statement for implementing all
of the Central Valley Improvement Act, including contract renewal. And based
on that, they developed a system of tearing down their contract requirements
because they wanted to standardize them as much as possible. And so first we
negotiated the CVP-wide and then different entities or areas negotiated,
like the Delta-Mendota contracts, the San Luis unit contracts. The
Sacramento Valley contracts were separate. The Friant contracts had been
earlier and were separate, and I wasn't involved with that, although Gary
had that lovely experience. But he and I and Ernest and others were all
involved together in countless, countless contract sessions, tearing down
these different contracts. And on the DMC side, I was sort of the lead
counsel for the group in getting organized down to a district level. We went
down to the regional and then ultimately to a district level contract for
every single district. And that process took from 1993 until long-term
contracts were signed in 2005 with the DMC contractors. For the San Luis
Unit, the environmental work has never been completed and they remain on
interim contracts. The sad thing is that for the DMC contracts, entered in

2005, there is still litigation pending which was originally brought
challenging CVP operations and environmental work that had been done for
that Endangered Species Act compliance. But at the last minute, the
plaintiffs expanded that to cover DMC contracts, alleging that they
should've been written in ways that were more favorable to the Delta-Smelt.
>> Thomas Holyoke: A DMC contract is someone contracting water from the
Delta-Mendota Canal?
>> Diane Rathmann: That's correct, I'm sorry. Delta-Mendota Canal, yes.
>> Thomas Holyoke: Did the passage of CVPIA in 1992 make this contracting
process far more complicated than it may have been prior to or before then?
>> Diane Rathmann: Well, yes, unfortunately. I was making trips to
Washington through all of that as well, along with Gary and Ernest much of
the time, and, yes, it made it much more complicated because that act
mandated that a certain amount of water be set aside for environmental
purposes, which reduced the entire capacity available for agricultural
service and also imposed, as I said, these new environmental review
requirements before contracts could be renewed. And it just became much,
much more complicated. As it turned out, in the long run, Reclamationentered contracts for the same amount of water as on similar provisions to
prior contracts, but even the prior contracts had had what were called
shortage provisions that allowed United States to short the contracts
without facing legal liability if it did so for reasons, various reasons.
Westlands was completely broad and has fortunately been narrowed through
this renewal process. Others were narrower. But with the new contracts, the
standard is that maybe the water may be shorted for legal purposes,
basically regulatory purposes. So all of the water requirements for the
environment under CVPIA get translated as water shortages through these
contracts such that last year and this year we are at zero water supply on
the west side for the first time in the history of the CVP. So even in the
'77, '76 and '77 drought, I think the contractors received at least 25 or
50%, but under the CVPIA, the projected average was 40%. And although we've
done better than that in many years, then we've also hit zero.
>> Thomas Holyoke: So the contracts that are signed now actually say that
the government has the right then to withhold water from basically
irrigation and water districts for environmental purposes if necessary.
>> Diane Rathmann: If it is mandated by law and regulation. They can't do it
on a whim or we have the right to seek redress. And the same is true for
municipal and industrial contracts, although they have a little bit more
favorable shortage provisions.
>> Thomas Holyoke: Okay. And you'd also mentioned that some of these water
districts are operating on interim contracts.
>> Diane Rathmann: Okay, so under CVPIA, the Central Valley Project
Improvement Act, it was pretty well known that it was likely some contracts
would expire before all the environmental work could be completed, and it
was envisioned that for maybe a three-year period there would need to be a
bridging contract, called an interim contract. And that was actually
authorized in CVPIA. And the language was that the secretary shall enter an
interim contract if the contract expired before the work was completed. And
then, unfortunately, it was that he may continue those for additional

periods, and that “may” really was, in my view, giving him authorization to
continue them permissive but it is not really discretionary because other
parts of the law provide that the contracts have to be renewed. However,
there have been challengers who have tried to maintain that only one interim
renewal should be entered. But as I said, those earlier expiring contracts
had, I think, seven or eight contracts before they finally got their final
contracts in 2005. And every one of those was a bloody, brutal battle to get
renewed. Now, they're more or less being renewed regularly. And the San Luis
Unit, for example, didn't have their contracts expire until - I can't
remember when. I think we're on the third one now, so - where we are? So,
you know, in 2006-7, in that time period. Pacheco Water District was the
last to sign a water district on the west side. Its contract runs through
2023 or 2026, I'm not sure, but well out into the future and it's still on
its long-term contract without any of this interim issue bothering it quite
as much. So it's quite fortunate just because it came along late.
>> Thomas Holyoke: Good grief. You'd mentioned that you had to fly to
Washington, D.C., a few times. I think around the CVPIA, you were - were you
involved at all with some of the lobbying efforts on those?
>> Diane Rathmann: Oh, yes. There were many - well, those and other items.
There were various tours that we went on. But, yes, I was back with a group
of people who, more or less - and I was really always on the fringes who
more or less futilely attempted to have that law be written in a way that
was a little more balanced and we would get language that we thought was
supposed to achieve that, and then in the subsequent interpretations it has
been almost uniformly interpreted against us and has not been a great
success from a water user’s point of view. But we also went back - Panoche
Drainage District has had issues relating to Kesterson Reservoir, which
caused us great selenium concern. That drainage district had actually never
hooked up to the San Luis Drain or drained into Kesterson Reservoir, but
nonetheless in the hubbub there was the possibility that, first of all,
service was cut off and, second of all, that still those districts would be
asked to repay in full not only the construction of the drain but also the
Kesterson cleanup. So there was a lot of lobbying and going back and forth
to Washington there. And, unfortunately for Westlands but fortunately for
the smaller districts, it was ultimately decided that - well, fortunately
for Westlands - that most of that cost was forgiven by the Federal
government, but then any future costs had to be repaid. And so that did
prevent any of us from getting too big a hit on that drainage issue,
although we've been coping with it ever since.
>> Thomas Holyoke: Just a couple questions on CVPIA. First off, the time
that was passing, was being enacted, did anyone realize quite what a major
moment that this was?
>> Diane Rathmann: Absolutely. Absolutely. For the farm community, it was
huge. It was a turning point from a time when Reclamation was seeking to
market water and to get people interested in participating in the CVP and
looking out for its agricultural customers to one where it became a
resources agency that was supposed to be looking out for all types of water
users and in particular for the environment under these new demands for the
environment. And part of the difficulty in contracting was there was very
severe differences of opinion of what was required and what was fair and how
it would be implemented.

>> Thomas Holyoke: Was there any ambiguity in the law or at least the way
people were thinking about the law regarding how many acre-feet of water
were actually going to be withheld?
>> Diane Rathmann: Well, absolutely. There was - the portion of the CVPIA
that dedicated water was supposed to dedicate 800,000 acre-feet of CVP
yield. And the water users believed that there had been a deal as to what
the definition of yield would mean that would limit what could be reduced,
and that definition has not been implemented in the way we believed it would
be and there would be endless litigation about it, and it's still quite an
amorphous ambiguous term and probably will have more litigation about it at
other points in the future.
>> Thomas Holyoke: You had made a reference to things that had happened at
Kesterson back in 1983. Did you get to be part of that?
>> Diane Rathmann: I was there the day that Kesterson Reservoir was closed
by David Houston, who was then the Regional Director of the Bureau of
Reclamation. And it was, you know, the air left the room. It was just total
shock that that was going to be the step taken and no one really had any
warning that that was going to happen. So it was very interesting. I mean,
of course - I'm sure you have far better authorities than I on how Westlands
had to go through efforts to resolve the drainage issues that it faced and
did so. For the Panoche and its surrounding districts, drainage had actually
always been not into the drain but into the wetlands. The wetlands were
clamoring for return flows from agriculture to supplement their small
amounts of contract water and that's how really what they had relied on for
a long, long time. So with CVPIA providing a freshwater supply and with
Kesterson having caused concerns about what's in agricultural water, the
wetlands no longer wanted to have this agricultural water coming through
their same channels. I mean, they're actually shared channels that existed,
you know, rising out of the exchange contractor development. So beginning
shortly after Kesterson in the late '80s, Panoche - Dennis Filasky
[phonetic] is their General Manager and he was the leader, but with the
board behind him, started trying to figure out solutions - and with many
other people - and the first thing that happened was the system into the
wetlands had kind of several branches. And so a channel was cut so that
water, drain water, from the agricultural districts could be put in one of
those channels and the other could be kept free of drain water and that
could be used for delivering the wetland irrigation supply, which has a very
low tolerance of selenium in the water. So that went on for a few years and
then subsequently we were able to negotiate an agreement with the United
States for use of the last 26 miles of the San Luis drain so that the water
could be put in the drain. At that point, it had not been used at all. From
the time of Kesterson, it was cut off and unused. Water could be put in the
drain and carried around most of the wetland channels, and it still empties
into one channel that reaches the San Joaquin River, but it bypassed about
95% of the wetland delivery system so that they no longer had to worry about
this drain water being in their deliveries. And we now are into the third
use agreement, which goes until 2019 and at that point, in order to meet
water quality objectives in that last channel, which is called Mud Slew, we
need to cease any discharge from the area I represent on this drainage
group, which is about 97,000 acres. And this summer we are at zero
discharge. We won't be there when there is more water part of the time and
particularly when there are storm flows we are going to have to deal with
that, but that's been a huge story.

>> Thomas Holyoke: What happens with all this drain water if you can't
discharge it?
>> Diane Rathmann: Well, the first thing that happens is over the years, to
promote irrigation efficiency for crop purposes and because of the shortages
imposed in these contracts, there has been more and more sprinkler and drip
irrigation installed. There's very little furrow irrigation left in the
Federal CVP districts that I've been talking about. So that is a source of
reducing percolation to groundwater that then is picked up as agricultural
drainage. There have been other things done, like lining of the canals and
putting in pipes instead of canals, although most of these smaller districts
have big, old systems and not the dollars to really go in and make them like
Westlands with everything in conduit, which is ideal. But nonetheless
they've made many improvements in that. Then on top of those, probably the
most innovative portion is that Panoche Drainage District, with grant help,
has been able to acquire 6,000 acres of land which it uses for drainage
reuse and it - as the water comes from all the different areas, it
ultimately flows into similar channels and it's picked up and used to
irrigate salt-tolerant crops on this 6,000 acres.
>> Thomas Holyoke: Like asparagus.
>> Diane Rathmann: There was asparagus there. There was an old field there
that went on for 10 years but now is gone.
>> Thomas Holyoke: Sorry, we interviewed Dennis Buloshi [phonetic] a few
years back and he brought some asparagus that had grown on these acres.
>> Diane Rathmann: Yes.
>>Thomas Holyoke: It was really good.
>> Diane Rathmann: Well, actually, now he hands out big bags of pistachios
because they are up to over 100 acres of pistachios and are headed to about
200 in this drainage area because it can grow on straight drain water.
They're primary crop is something called 'Jose' tall wheat grass, which is
something that you can harvest and bale and sell for cattle feed, and they
also have quite a bit of alfalfa in that area. So in that area, it is lined.
It is largely tiled so that the drain system picks up what gets below the
root zone, but their flood irrigation is used because this is really
displacing the water and giving an alternate use and keeps recirculating and
recycling it through this area and reducing the amount that has to be
discharged and that's the way that people are headed to zero. Another thing
I forgot to mention is within each district itself, a lot of the districts
pick up the drain water and mix it back into their systems with freshwater
so that it has acceptable salinity levels and then reapply it to their
crops. So that's another way to reduce drainage.
>> Thomas Holyoke: Now, the original drainage system that the Bureau of
Reclamation was supposed to have built as part of the San Luis Unit, I guess
it's my understanding that just a few years ago Judge Wanger [phonetic] had
essentially ordered and told them that they still were obligated to do it.
>> Diane Rathmann: He did.
>> Thomas Holyoke: And where does that then leave the Bureau?

>> Diane Rathmann: Well, the 9th Circuit, in its wisdom, came back and
determined that it needed to provide drainage service, but that didn't
necessarily mean a drainage outlet to the delta or bay as had originally
been conceived. So basically the drain itself has been abandoned and
Reclamation has provided support to the areas I've been talking about for
development of this reuse area, in our area, and then Westlands has engaged
in land retirement, where it has come in and purchased land and helped
Westlands with funding. Westland has done a significant amount of land
retirement to manage their immediate drainage problems. But Panoche,
Pacheco, and their neighboring districts, including parts of the exchange
contractors are the low end of the system, so they really have had the most
immediate demand for drainage service other than just some parts of
Westlands, which became very salinated and have gone out of business and
been retired. But these lands have been able to remain productive because of
these techniques that have been employed and up to now because there has
been some level of drainage outlet. When we began this program in 1996,
there wasn't selenium. Selenium is the focal point, and salts. Selenium
being discharged was, you know, around 8,000 pounds per year or more, and I
believe last year from this area of 97,000 acres it was something like 366
pounds of selenium that actually were discharged in waters leaving this. We
still have a lot of people in the bay screaming, you know, your selenium is
destroying everything, but that's been the level of reduction through all of
these techniques that have been evolved and it's, to me, it really is the
solution for drainage matters. There's still some refinement. We're still
seeking to treat the most reused and the most saline water, and nothing has
really worked completely. Reclamation has built a big plant and is working
on some systems there. As I was telling Jim, one of the most exciting
systems - the problem is, in reverse osmosis membranes, the membrane's
always plugged because the drainage water has all sorts of natural materials
and hardness in it. So there is now a company that is doing more
desalination-type programs, where it uses solar collectors to heat oil that
is then used to run a little system that essentially desalinates the drain
water and gives you pure, desalinated water as a return. There's a small
amount of waste, but a very small amount. And that has been successfully
done on a low level and we're now trying to - the company is trying to get
funding to build a larger treatment plant going to test it on a broader
area. The idea is that here we have large amounts of the Valley where there
is saline groundwater underneath the surface, not very far down, above the
Corcoran Clay, that we need to manage for drainage and this may be a huge
resource if we can come up with a system that will actually allow it to be
economically desalinated and then reapplied for other uses. So to me it's
not quite done, but it's within our grasp and very exciting. In the
meantime, our critics are just trying to - there are people who simply
believe this area should never have been irrigated, these farms should go
out of business, and that's the simple answer to everything. So we are
fighting a few fronts on those issues as well.
>> Thomas Holyoke: They're the same people who have been filing lawsuits
against the renewal of contracts?
>> Diane Rathmann: No, they vary. The anti-contract people primarily have
been major national environmental organizations. NRDC has always been the
lead. I refer to these as more the fringe groups, you know, people who
obviously have a big interest in what goes on in Panoche Drainage District,
like the San Francisco Crab Boaters Association, things like that. a lot of
very small groups joined together under the auspices of some slightly larger
group and file lawsuits because they - and they may well believe on an

individual level that contaminants reaching the bay are affecting their
ability to fish and be successful in the old ways, but they are not
bothering to educate themselves much about what actually is going on or how
things have changed and it becomes kind of just a cause celebre. And for the
lead environmental agencies, the worse they can make people think the
situation is, the more they get funding and support and notoriety out of
their litigation, etc. So that's my very biased view on how this works. I'm
not being political, I mean, politically correct here. I'm explaining how it
seems from my end.
>> Thomas Holyoke: Certainly. An organization like NRDC would need to have a
sort of, I suppose, a constant threat in order to raise money.
>> Diane Rathmann: They do, and there are environmental organizations that I
admire and that I think are really working to improve the environment that
do not engage in quite the same tactics. And NRDC - even NRDC I don't class
with these smaller fringe things that just throw darts to throw darts. They
have their philosophy, they have their ideas of what it is they're trying to
achieve, and I disagree with them whole-heartedly, but it's not only - it's
not only keeping up the funding, but there is a component of that for sure.
>> Thomas Holyoke: You had mentioned something in regards to Panoche. Yeah,
I think it was Panoche Drainage District. What is a drainage district?
>> Diane Rathmann: Well, in - under California, there are various types of
law for formation of districts. There is the California Irrigation District
Act and the California Water District Act. Those are probably the two most
prevalent. There are also some older laws called Drainage District Acts. The
one under which Panoche is formed is called the Drainage District Act of
1902, and they basically were originally formed to reclaim the land when it
was marshy and to carry away drainage. And irrigation, or at least a water
district, can provide drainage service as well as water service, and for
reasons that are not entirely clear to me, the Panoche Drainage District is
bigger. It includes a couple of other smaller districts besides Panoche
Water District, so it's about 44,000 acres, and it essentially owns all of
the drainage facilities and collects the water that comes off of the
irrigated acreage within the water districts.
>> Thomas Holyoke: So it's a totally separate agency, if that word's even
appropriate. It's a wholly separate district from Panoche Water District?
>> Diane Rathmann: It is a separate district because
and because it's also a landowner voter district. It
board of directors, but it is does - it is separate.
requirements and different authorities and different
things like that.

of the common ownership
actually has the same
It does have different
sources of funding and

>> Thomas Holyoke: Okay. Well, speaking of public agencies, we can maybe
talk a little bit about San Luis and Delta-Mendota Authority, which I gather
you had quite a bit of involvement in.
>> Diane Rathmann: Yes, I've been involved in it pretty much since the
beginning.
>> Thomas Holyoke: Well, first off, what is it?

>> Diane Rathmann: The San Luis and Delta-Mendota Water Authority is a joint
powers organization and it has I think at this point 26 member agencies, all
the water districts I've been talking about, Westlands, and other water
districts in the northern part of the Valley clear up to basically Tracey.
And the original reason for its formation was that Reclamation decided it no
longer wanted to operate and maintain the Delta-Mendota Canal and it was
going to contract this out and it might put it out to bid to Granite
Construction or whoever, and people in the area were very concerned that it
could go to someone interested only in bottom-line dollars and not in the
reliability of being able to deliver water, and therefore they worked with
Reclamation and decided to form this joint powers agency, which then has
contracted with the Bureau of Reclamation to provide the operation and
maintenance of the Delta-Mendota Canal. The same thing was done by the
Friant - originally the Friant Water Users Authority, now the Friant Water
Authority, on the Friant system and it was done by the Tehama-Colusa Canal
Authority for the Tehama-Colusa Canal in the Sacramento Valley.
>> Thomas Holyoke: Does it own just the canal or does it also own the pumps
themselves?
>> Diane Rathmann: It does not own either.
>> Thomas Holyoke: Oh, I'm sorry.
>> Diane Rathmann: The Federal government continues to own both, but it
operates - it operates both the canal and the Jones Pumping Plant and the
O'Neil Pumping Plant at the reservoir. But the operations are controlled
what's called CVO, Central Valley Operations, of the Bureau of Reclamation
pretty much jointly with the Department of Water Resources, which runs the
State water project, everything that goes through the delta is a very
closely coordinated operation. So calls as to when you may pump and how much
you may pump are made by Reclamation, but the Water Authority implements
those orders and maintains the pump. At first it was done with Federal
funds, but after a few years they said, oh, well, now we want you to fund
it. So the Water Authority bills its members for water rates to cover the
operations and maintenance activities that it's involved in.
>> Thomas Holyoke: So as far as pump operation goes, the Water Authority
gets to turn the switch on, but the Bureau of Reclamation gets to decide
when the switch gets turned on.
>> Diane Rathmann: Right, and right now Fish and Wildlife Service or
National Marine and Fishery Service pretty much dictates to Bureau of
Reclamation when those switches get thrown.
>> Thomas Holyoke: When this was - when the agency - I'm not sure what the
proper term is to use. The Authority? When the Authority or the idea of the
Authority was being put together, was there a model for this or is this a
new thing?
>> Diane Rathmann: Well, some of both. Obviously joint powers agencies exist
in many contexts around the state for water and for other purposes, and in
the Federal law there is a provision under Federal Reclamation law for a
project to be transferred completely to the users ultimately when the cost
of the original investment in the project has been paid out. And so the idea
of transferring it from Reclamation to a third party was not totally

foreign, but this is a pretty new thing to start to turn it over to this
sort of a group. It was, yeah, a lot of inventive effort went into that.
>> Thomas Holyoke: Were you the principle counsel involved in this?
>> Diane Rathmann: I was, for the Water Authority.
>> Thomas Holyoke: So if it's a new thing, where did you - how did you come
up with all the law?
>> Diane Rathmann: Well, I didn't - well, I always say I like this kind of
Water Law because you kind of have to make it up as you go an awful lot of
the time. There were other attorneys. Actually, Ben Yule from Fresno had
worked on joint power agencies before and he assisted us in putting that
together and he provided a lot of the blueprints for how you set up a JPA.
And actually I think the JPA itself I did not write; it was prepared by a
bond counsel because one of the things that happens was that there needed to
be major, major work on the Tracey - it was then called the Tracey Pumping
Plant. It's now the Bill Jones Pumping Plant, named for Bill Jones, father
of the Secretary of State and a leader on the west side and of the Water
Authority for a long, long time. It needed major refurbishments and to raise
that money the JPA was formed and that was really the first activity even
before the transfer of these operation and maintenance obligations occurred.
So it was kind of a group effort to put these things together. And then the
Water Authority itself, besides this operation and maintenance, does a lot
of work as kind of a group political effort for a lot of its member
agencies, and we have Westlands, which is very powerful and very wellconnected to the south, and we have Santa Clara, which is a member, which is
powerful and well-connected to the west. But the smaller districts have not
had as much a voice or as much ability because of their size to be involved.
So the Water Authority has served that purpose on many of these things. In
order to be able to move forward on different activities, we have created
what are called activity agreements, and so we have subsets of members who
are involved in different activities and pay in for different services to be
provided by the Water Authority. The drainage group that I mentioned is
formed under the Water Authority as one of these activities and there are
several others. One of the most recent ones has been - well, it's kind of
asleep right now - one formed to work on the conveyance portion of the Bay
Delta Habitat Conservation Plan, which is now moving into new directions,
but - so there have been subsets to work on different things. That was sort
of where I had really more of the organizational work and I built an awful
lot of these activity agreements, some of which have lasted and some of
which come and go over the years, but it's given us a mechanism to be very
active on specific topics. And, for example, in this drainage, use of the
San Luis Drain, which is referred to as the Grassland Bypass Project, we had
to convince the State board that this tiered-down subgroup was enough of a
legal entity that it could issue permits, water quality waste discharge
permits, for these discharges coming off this area to the Water Authority on
behalf of this subgroup. And we were able to convince them that we had
enough authority and clout and participation by our members to be a
responsible agency that they could regulate and that's how they managed to
get that going. So those are just - you know, the issue comes up, you have
to figure out a way to address it, and lo and behold, create something and
then you tweak the last one into a different direction and it just keeps
going.
>> Thomas Holyoke: By the way, what is the Grassland Bypass Project?

>> Diane Rathmann: Well, that is - I was speaking to you before about the
way the drainage needed to be reduced. The group that utilizes the San Luis
Drain within the Water Authority is referred to as the Grassland Bypass
Project group because there was constructed a short channel connecting the
existing drainage system with the San Luis Drain and that is called the
Grassland Bypass Channel because it bypasses the Grassland Water District
and the Grassland Resource Conservation District refuges with this water
taking it directly to the drain.
>> Thomas Holyoke: On the operation of the Authority, all these different
districts have I assume some kind of representation. They sort of
collectively form the board of directors?
>> Diane Rathmann: Yes. In the JPA, we formed a board of directors. It has
19 directors. That doesn't allow every district to be represented. There are
some areas that are represented by division rather than directly by
district, and this was all kind of worked out basically based on the
original water supply contract amount as to the waiting of where
representatives could be plugged. But it's a one member, one vote, but just
in terms of how the members get selected. So there are also alternates and
often if it's a division, the alternate will be from the different district
than the member, which allows a little bit more representation. So that is
how the board of directors was formed.
>> Thomas Holyoke: Do the little districts then have I suppose weight equal
to Westlands in the operation of the Authority?
>> Diane Rathmann: They have the same vote. Well, they don't, actually.
Westlands has two positions on the board of directors. Santa Clara has two
positions on the board of directors, and others often only have one or, as I
said, may be represented in a division. So there's some weighting there, but
it's mighty equal considering the difference in size and economic power. So
- and it's worked well. It's been - we always say it doesn't really matter
what we put the vote in because if you can't get there by very close to a
unanimous vote, it shouldn't be there anyway. So we are always quite, almost
always the Water Authority is not undertaking anything that does not have
the full support of its membership. If there are differences, and sometimes
there are, then the individual districts will represent themselves in those
particular matters. The exchange contractors are members of the Water
Authority. They obviously have some differences because of the much greater
water supply and much more secure water supply, and their diligence in
protecting those rights over the more Johnny-come-lately CVP contractors who
are not as protected in their right to water.
>> Thomas Holyoke: Have you been involved at all with some of the efforts of
the Authority and the member districts to, you know, cope with the Bureau of
Reclamation - well, not even the Bureau really, but the decisions to, you
know, shut down the pumping as a result of the environmental concerns that
have been involved with the many, many lawsuits over that?
>> Diane Rathmann: I am never the litigation counsel. As General Counsel in
the past, I often comment on things and I'm usually not a primary advisor on
that, but I often give my words here and there and then, of course, I
tracked all of the litigation and assisted with - mostly what I would assist
with would be providing facts, things that were on the ground that were
within my knowledge, to make sure that things were correctly represented and

then, given my knowledge of the law, that I felt that things were lined up
correctly. Not the research and application of the legal arguments so much,
but I've always been involved on those things. Many hours in Judge Ranger's
courtroom, but on a back bench ordinarily.
>> Thomas Holyoke: So what's been your impression of all these cases
collectively? I mean, besides the obvious, you know, economic damage that's
been done, I mean >> Diane Rathmann: You mean the economic damage >> Thomas Holyoke: To all the districts that you represent.
>> Diane Rathmann: Not because of being involved in litigation but rather
because of what they have to fight, is how I would put it.
>> Thomas Holyoke: Well, okay, as opposed to the resulting cutbacks on
water.
>> Diane Rathmann: They have had excellent counsel and representation
throughout, incredibly brilliant and articulate people. Tom Birmingham was
originally counsel and is absolutely brilliant and pulled out incredible
turnabouts on various occasions. The rest of the counsel we have had is
very, very competent and good. It's a time where apparently the societal
values and the political values have changed and we're up against really
tough situations and we have been able to keep people going and to find as
much reasonableness and as much water as has been possible. The litigation
generally is brought reluctantly. It is brought when efforts to get a
reasonable interpretation have failed and the Authority always says, and Dan
probably talked about this, it has a three-pronged approach. It tries
administratively, it may try legislatively on occasion, and it goes to
litigation when it has to. Those are its strategies to try to protect its
members' interests. But administrative is always the first. There's always
huge effort to work with people and, for example, during CVPIA, huge efforts
to work with people on all sides. I mean, there were members with - meetings
with Environmental Defense that went on for months and months and months and
months prior to and throughout the completion of the CVPIA. So California's
political bill is generally pretty liberal, not too concerned about farmers
as compared to the environment, and it's just been a struggle.
>> Thomas Holyoke: Has the Authority and the districts, as far as the
litigation goes, have they been primarily on the - I mean, they've been
primarily the recipients on the defensive side rather than, you know, trying
to litigate back?
>> Diane Rathmann: Well, generally, yes. I mean, often they will join the
United States if something, for example, on a contract action trying to set
aside the contract actions. The United States is the defendant and the Water
Authority is in on the same side as the United States, but it's part of fair
share of litigation, in particular in interpretations of CVPIA and the
800,000 acre-feet I mentioned because we had a belief that the yield meant a
certain amount and no more would be taken and that turned out not at all to
be the case, and we challenged that. And we've had some victories along the
way that have helped refine the understandings of things, but we've also had
losses and not - generally, we do okay locally and the 9th Circuit does not
go the same way. It's a big issue there.

>> Thomas Holyoke: And I guess my layman's understanding of it is that a lot
of this is in the way of the Endangered Species Act is both written and
interpreted, that essentially government agencies must do all they can to
save endangered species regardless of the impact on humans.
>> Diane Rathmann: That is true, and that was established in the original
snail darter case, and when a whole dam was stopped for the snail darter.
It's very interesting. I don't know if you've had the opportunity to talk
with Craig Manson, who is General Counsel to Westlands at this time. He is a
former Deputy Interior official who was head of Fish and Wildlife Service I think a Deputy Assistant to the Head of Fish and Wildlife Service for a
time. And, you know, I think his view is that the Endangered Species Act,
much like CEQA, has been stolen. It has been used in ways that were never,
never intended. The Endangered Species Act has provisions in it that require
the government to invest in conservation of the species. Those investments
have never been made at our level. There are failsafe provisions that have
never really been invoked to try to prevent huge economic harm from
implementation of the Act. You know, I think from this interview you may
think that I am anti-environment. I'm not. I'm a naturalist. I love the
outdoors. I love the environment. I do not want to see species wiped from
the earth for the sake of agriculture. But on the other hand, I think man
has the right to use the resources that are here in our state and, at this
point, especially now before the State board, I mean, we are being told, you
know, you may not have water period because we're going to try and save the
salmon run. That is really quite extreme and that is how the Endangered
Species Act is interpreted and being used. And I think that is mislaid.
>> Thomas Holyoke: Does finding a balance require making amendments to the
statute itself? Or is it simply a matter of you getting a court to
reinterpret?
>> Diane Rathmann: I think at this point, given the line of interpretations
that exist, there have to be changes in the Act for it to be dramatically
changed. I don't think that it can be reinterpreted and employed in a way
that doesn't result in much the same result.
>> Thomas Holyoke: And for CEQA as well?
>> Diane Rathmann: CEQA, well, CEQA is just a travesty. I mean, CEQA is "Mr.
I Oppose Projects, Ability to Stop Anything" to a large extent, in part just
by making it too expensive or too difficult to accomplish worthwhile
projects. And both - the difficulty of both CEQA and the Endangered Species
Act for the CVP and our folks are they are being enforced now in ways that
they've never enforced and it's after the fact. It's on ongoing projects,
where things are already in place. I think they were envisioned as ways to
screen things out and take care of things before you got to that point. And
to the extent that they are now being used to hammer back our existing
system, it's a very difficult clash.
>> Thomas Holyoke: That's like pretty much every time a project needs to be
done; you need to put together a giant fund for litigation first.
>> Diane Rathmann: Well, that isn't exactly how we approach it, but that
often is the case. It makes things - it makes things very difficult, but so
do things like the Clean Water Act, which, again, I mean, think about it.
The ADA is a huge tool for the parties who wish to press it and attorneys
who wish to make money from it, but is not necessarily about just

accomplishing the good it was intended to accomplish. It just what kind of
happens when we pass very broad-sweeping laws for the benefit of X and kind
of forget about all the rest of the universe in the way we draft it.
>> Thomas Holyoke: I'm just curious. Did you study any of this in law school
or is this all learned on the fly?
>> Diane Rathmann: You know, this is - absolutely, this is really funny. At
UCLA, there weren’t a lot of Water Law courses and it was my senior, my
third year, I signed up for Water Law and I got ready to go to the class and
looked up and it'd been cancelled for a new Entertainment Law section. So,
except for the very most basic principles of Water Law in my Real Property
course, this has been learned on the fly. But it hardly matters because it's
changing all the time anyway. I mean, most of the laws I dealt with didn't
exist when I was in law school, so things have changed dramatically since
that time.
>> Thomas Holyoke: What have I not covered yet?
>> Diane Rathmann: That's a good place to let me off the hook.
>> Thomas Holyoke: Well, that's just considering - as long as Jim here lets
me know that we haven't missed anything huge.
>> Jim Provost: No, she did an excellent job of covering the subject. I'm
proud of her.
>> Thomas Holyoke: Actually, I do have another question. Have you been
working with the Authority a lot on their efforts to at least try to move
forward on this big new conveyance project, the tunnels?
>> Diane Rathmann: Again, I'm the back bencher. I'm the one that kind of
knows what's going on at one level, but I have not been on the forefront of
that at all. It certainly has been very interesting, always would've been a
major challenging plan, but basically it has just been stopped by the
inability of project proponents to move project regulators. If you're a
regulator - and I've seen this so much before the Regional Water Quality
Control Board and the State Board - you know, you're handed a law and your
job is to make sure that this law is implemented through your regulations.
And there are a lot of people out there beating up on you, saying "You can't
be too careful. Go as far as you can. You just gotta do more. You gotta come
down harder. You gotta do this faster." And it's very easy for a regulator
to say "yes." For example, for an agency entrusted with an endangered
species, its goal is to preserve that species and that's its only goal. It
may have some obligation to consider economic effects or policy effects at a
very minimal level. I mean, I think it's greater than they actually do, but
nonetheless that is their sole focus. So when you get out in an area like
the Delta, where very little is known, everything is changing all the time,
the entire environment has being totally reconstructed from what naturally
was there. There's just a great uncertainty. And then there are all these
other pressures and things are changing. For example, for an invasive
species, which have totally changed the food web, which has affected the
species all the way up and down. So these agencies say, well, we don't know
what's going to happen, so we can't tell you, “yes, you can go ahead and we
aren't going to demand more of you even if you invest your $40 billion or
your $26 billion or however much it is.” They just can't say that. How can
you put up that money to move forward if you don't have any kind of

certainty? So I think we're in a pause and people are looking for ways to
try and move forward, but it's got to be reconsidered and rethought because
there are just too many obstacles that couldn't be overcome.
>> Thomas Holyoke: I was about to end with a question about what do you
think the future holds, but it sounds like the future holds paralysis.
>> Diane Rathmann: Right now it does. I mean, that's one thing about this
desalination issue I said. I mean, I think south of the Delta, we need to
become more self-sufficient. There isn't a lot of water down here. A lot of
the water that's down here is already fully committed. We've developed and
relied on our imported supplies and I truly trust we'll get back to a time
when we have better than we have now, but I think anything we can do to
develop local supplies, first of all, is going to be demanded by the Delta
Stewardship Council and their regulations and others in the legislature.
And, secondly, it just makes a lot of sense. If we can recover groundwater
that is currently not useable and use it, then I think we're in great shape.
And by this I'm talking about shallow brackish groundwater, not deep ground
water, which is, again - the surface water is gone, now the State's coming
in to regulate our ability to use the deep water. We're just in so many
circular issues that it's quite challenging, but I know that there are young
and bright people working on all of these problems and a lot of technology
coming along and so I'm not totally hopeless about it, but I'm sort of glad
that I'm at an age to move to quieter times.
>> Jim Provost: Amen.
>> Thomas Holyoke: Thank you very much.
>> Diane Rathmann: You’re welcome. Thank you for inviting me.

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