Water Archives · Tom Birmingham interview

Title

eng Tom Birmingham interview

Description

eng Long time water lawyer involved with the Mono Lake cases and current general manager of the Westlands Water District.

Creator

eng Birmingham, Tom

eng Holyoke, Thomas

Relation

eng Water Archive Oral Histories

Coverage

eng California State University, Fresno

Date

eng 4/18/2016

Format

eng Microsoft Word document, 30 pages

Identifier

eng SCMS_waoh_00049

extracted text

>> Tom Holyoke: Today, we are interviewing Tom Birmingham who is
currently general manager of the Westlands Water District. Let's just
start off with a little bit of personal history. Where are you from?
>> Tom Birmingham: Well, I was born in a very small town in Northern
California, Yreka, which is the county seat of Siskiyou County. I went to
school there, graduated from high school and then went off to college and
law school. And--but I still think of--anytime I can see Mount Shasta,
I'm home.
>> Tom Holyoke: Where did you do your law school education?
>> Tom Birmingham: I went to the University of the Pacific, McGeorge
School of Law.
>> Tom Holyoke: OK. And did you specialize in water law at the time?
>> Tom Birmingham: No, I didn't. In fact, when I was in law school, if
somebody had told me I'd end up practicing water law, I would have--I
probably would've laughed at them. But after law school, I did a
fellowship with Pacific Legal Foundation. I was a fellow in their College
of Public Interest Law and I worked on a couple of cases involving water.
One of which was drafting an amicus brief that was filed in the Supreme
Court proceedings of National Audubon Society versus Superior Court. And
so I became keenly interested in water law as a result of the work I did
at Pacific Legal Foundation. And when my fellowship was ending, I looked
around and there were two law firms in Sacramento that I really wanted to
work for. One was McDonough, Holland & Allen, and Martin McDonough was
one of the deans of California water law and the other was Kronick,
Moskovitz, Tiedemann & Girard and I really wanted to work for Adolph
Moskovitz. So I ended up going to work at Kronick and was fortunate
enough to be able to work for Adolph for a while. And then over the
years, he and I became very close friends and I then became a partner in
the firm and became the manager of its water law practice and then
succeeded Adolph in a number of the large clients that he worked for.
>> Tom Holyoke: And Mr. Mokovitz's name has come up in other interviews.
I don't know much about him. Could you tell us a little bit about him?
>> Tom Birmingham: Sure. Adolph is probably one of the most--was one of
the most intense people that anyone could ever meet. He was Jewish, grew
up in Los Angeles. Started college and when World War II broke out, he
became a pilot in the Army Air Corps and flew bombing missions over
Europe. When the war ended, he went back to law school. He took advantage
of a program that allowed him to study law at Boalt without completing
his bachelor's degree. He got his law degree from Boalt and then started
working predominantly on issues related to water. He first I believe was
with the California Attorney General's office. He spent some time working
for the federal government. And then in 19--I want to say 1959, he and
Stan Kronick who was one of his friends that had also worked in
California water started at that time Kronick, Moskovitz & Vanderlaan.
And then Mr. Vanderlaan left and it became Kronick, Moskovitz, Tiedemann
& Girard. But Adolph was probably one of the smartest people that I've
ever worked with. He was somebody who was a very severe task master. I

remember as a young associate drafting memos and sending them to him and
drafting them coming back and there wasn't a centimeter on the page that
wasn't covered in red ink or actually pencil. Because he didn't want
anybody to use ink because you needed to use pencil so you could erase
anything that you wanted to change. And I still have many of those old
memos.
>> Tom Holyoke: OK. So when did you go to work for the firm?
>> Tom Birmingham: I started at Kronick on March 17th, 1986.
>> Tom Holyoke: OK. Now, I've heard you say that some of the first work
that you did as an attorney was I guess related back to the old LuxHaggin cases?
>> Tom Birmingham: That's correct. One of the first real water law cases
that I worked on when I was at Kronick or started at Kronick was a
continuation of Lux versus Haggin. It was the successors of Lux versus
the successors of Haggin. And it was a fascinating, fascinating case
because I got to spend hours and hours, days going through historical
files looking at old maps, looking at old pleadings that had been filed
in the Supreme Court. And it was a fascinating case. But I think that
it's--that work was symptomatic of what happens in California. We can
temporarily resolve issues related to the use of water. But the history
of California is really the history of disputes concerning the use of
water. Some of the first environmental cases in United States involve the
use of water in California for hydraulic mining. And the fact that in the
1980s, we were still arguing about a case that had been decided in 1856
by the California Supreme Court is really an indication that these
disputes over water are long lasting.
>> Tom Holyoke: Well, the original case as I understand was, you know,
the big clash between the appropriative legal doctrine and the riparian
legal doctrine for water. Is that what they were--the successor were
still fighting about in the '80s?
>> Tom Birmingham: Well, it was more an issue of the degree to which the
appropriators had rights to use water that the riparian users asserted
they had a right to use. And so it involved a lot of the same issues.
>> Tom Holyoke: Do those sort of cases still go on today?
>> Tom Birmingham: When you say those sorts of cases?
>> Tom Holyoke: OK. I like to kind of--mainly I need two things. First
off, are there still clashes going on today between, you know, the
successors from Lux and Haggin?
>> Tom Birmingham: Well I don't know if they're--or I think that those
issues have been resolved, I hope permanently, but they have been
resolved. But in terms of clashes between appropriators and people who
assert that they have riparian rights, those disputes are still ongoing
today. If you look at some of the issues that we're dealing with right
now in the California Delta or the Sacramento-San Joaquin Rivers Delta, a

lot of those issues involve whether individuals who assert a riparian
right actually have a riparian right and the degree to which they are
permitted to divert water for use on land that they assert as riparian.
>> Tom Holyoke: The first major case that I actually--that I have always
tended to associate with you is sort of the later years I guess of the
cases involving Mono Lake and the diversions of water around the streams
going into Mono Lake. Could you talk a bit about your involvement-Actually, could you give us a little bit of background on the Mono Lake
cases?
>> Tom Birmingham: Well, I guess how far you want to go back? I think
everyone who was at all familiar with the history of water development in
California is familiar at least to one degree or another with the
development of the Los Angeles Aqueduct. William Mulholland who was an
Irish immigrant developed a system to import water from the Eastern
Sierra, initially the Owens Valley, to the city of Los Angeles. And it
was--a lot of people I think would maintain that it was the importation
of that water that really enabled the city of Los Angeles to grow and to
develop. In the 1940s, the city of Los Angeles was interested in
expanding its rights to divert water from areas in the Eastern Sierra. So
it looked at the potential of extending the Los Angeles Aqueduct to the
Mono Basin. Mono Lake is a saline lake but there are many streams that
flow into Mono Lake. The legal term is that there are streams that are
tributary to Mono Lake. And so the city sought permits to appropriate
water from those streams and the permits were granted. At the time that
permits were granted, there were concerns expressed by the California
Department of Fish and Game and others that the diversion of water from
those streams that were tributary to Mono Lake would do environmental
harm to fishery resources in the basin and to the lake itself. And the
State Water Resources Control Board or its predecessor wrote a decision
saying that it recognized that those harms might exist. But under the
California law as it understood at the time, it really couldn't give
consideration to those effects and so it granted the city a permit to
appropriate water from those streams that flow into the lake. In the
1970s, there were a series of events that resulted in number of lawsuits
being filed. And one of those lawsuits was filed by the National Audubon
Society and the Mono Lake committee. And it asserted that under the
public trust doctrine, the state of California had an ongoing obligation
to consider the environmental consequences or the impacts of diversions
of water from streams tributary to Mono Lake on the public trust
resources of the lake. There were a number of lawsuits that were filed.
But in 1983, the Supreme Court issued a decision, National Audubon
Society versus Superior Court. And it's a pretty lengthy decision. It did
hold that the state of California has a continuing obligation to consider
the impacts of water diversions on public trust resources, and public
trust resources were defined pretty broadly by that decision. But it also
held that the--there's a need in the state of California to recognize
that the diversions of water--even if there are environmental
consequences, the diversion of waters is necessary for the development
and to continue the sustainability of the economy of the state. And so,
the Supreme Court stated very simply, held that the--in evaluating
whether or not someone should be permitted to divert water. It's
necessary to conduct the balancing to determine whether or not the need

for the diversion of that water outweighs any potential impacts on public
trust resources. It's--there are lots of interesting holdings in the
case. But after the decision in 1983, there were some proceedings that
were going on in federal court. It's a--there's a long procedural
history. But in 1989, it became clear that the clear was going to become
active and Mr. Moskovitz asked me if I would assist him on the case. I
worked on that case for many, many years. And in 1993, Mr. Moskovitz
retired and so I became the lead attorney for the city of Los Angeles
Department of Water and Power and ultimately participated in the State
Water Resources Control Board proceedings that resolved many of those
issues concerning the rights of the city of Los Angeles to divert water
from the streams tributary to Mono Lake.
>> Tom Holyoke: How does the public trust doctrine then I guess--how does
that, I don't think interfere is the right word, but change in the legal
doctrines in the state of California regarding the right to use water. I
mean I guess primarily, when we think about the water rights we think
about the riparian and the appropriative water doctrines. How does public
trust change this, the right to use water?
>> Tom Birmingham: Well I think probably, the most fundamental change is
that prior to the decision in National Audubon Society, if you were to
ask most water lawyers in the state of California, they would have
advised that once a right to appropriate water is developed and a license
issues indicating that the right has been perfected that it's a property
interest that could not be taken back by the state. But one of the--I
think one of the most important elements of the decision in National
Audubon Society is that there is this continuing obligation on the part
of the state to evaluate or to reevaluate the impacts of the
appropriations on public trust resources and that anytime the state of
California can revisit earlier decisions to determine whether or not the
impacts on public trust resources created by the diversion of water
continue to be warranted. And in the case of the city of Los Angeles, the
court observed that that analysis had never been conducted. And so the
state was conducting that type of public trust balancing in the city of
Los Angeles's case for the first time. But the other way in which the
public trust doctrine has fundamentally changed the law of appropriations
of water in California is that the state has to conduct a balancing to
determine whether the environmental harm, harm to those public trust
resources is--outweighs the need to divert water into the--to use that
water for economic activities in the state.
>> Tom Holyoke: Is that the first time that the public trust doctrine had
been raised as a legal issue with water in California? I don't know of
any mentioned. I don't know->> Tom Birmingham: In California--In California, yes. I mean there were
other older cases in other states, the city of Chicago as an example
where public trust issues have been developed. And there were some early
cases involving fishery resources in California that spoke in terms that
were similar to public trust analysis. But it was the first that the
public trust really had been applied to the appropriation of water in the
state of California. And the public trust doctrine as you probably are
aware of is an ancient doctrine that held that the land underlying title

waters belonged to the sovereign and that the sovereign had the right to
protect navigation, fishing and other public trust uses of those title
waters. The case in National Audubon Society extended that to navigable
waters that are not coastal waters. The old doctrine of public trust
generally applied to coastal waters. But it now applies to any navigable
waters and to streams that are tributary to navigable waters.
>> Tom Holyoke: So the Mono Lake case, its--Mono Lake itself which was
the navigable water but I guess Rush Creek and the others are the
tributary rivers to it.
>> Tom Birmingham: Well, you know, that's interesting and the answer is
yes. But at one point, one of the issues was that it--was whether or not
the doctrine would apply to streams that were non-navigable. Because even
when we were litigating these issues in the late '80s, early '90s, it was
not--whether or not the doctrine would extend the streams that were nonnavigable but were tributary to a navigable body of water had been
unresolved. So we actually hired a fellow, the city of Los Angeles hired
a fellow to try and kayak down Rush Creek and he was almost killed and he
was a very, very experienced kayaker and he was almost killed trying to
navigate Rush Creek, which was what the largest tributary to Mono Lake.
>> Tom Holyoke: As I understand, the Mono Lake case generated so much
public attention that at least the impression I get from the material
that I've seen from the Mono Lake Committee is that this was as much a
political fight as it was a legal fight. Was that your impression? There
was a big political dimension to this?
>> Tom Birmingham: Without question, it was as much a political fight as
it was a legal fight. I remember very clearly, when the State Water
Resources Control Board started the quasi-judicial proceedings that
resulted in its decision related to Mono Lake. There were a series of
meetings that were held where members of the public could step up and
make policy statements. And there was one proceeding at Ackerman Union at
UCLA, my alma mater, and person after person after person stood up at the
microphone saying that it was necessary to establish a lake level of--I
don't even recall what the lake level was. But Don--the secretary for the
California Environmental Protection Agency came up to the microphone and
said that, you know, he was there on behalf of the governor and the
governor believed very strongly that a particular lake level needed to be
established. And I leaned over to one of the attorneys from the city of
Los Angeles and said, "I think this is over." And ultimately, that was
the lake level that was established by the State Water Resources Control
Board that was necessary to protect the public trust resources of the
lake.
>> Tom Holyoke: Was that Governor Wilson?
>> Tom Birmingham: It was under Governor Wilson, yes.
>> Tom Holyoke: OK. Is the public trust doctrine--has it been used widely
in legal battles over water since then?

>> Tom Birmingham: No, it has not. And that's one of the interesting
things about the public trust doctrine is that it hasn't been widely used
since then. There are many proceedings in which public trust resources or
the public trust doctrine is raised. But there are people who even within
the environmental community who always believed that exercising the
state's police power probably was more powerful than trying to rely on
the public trust doctrine in order to protect environmental resources.
Now, there are some interesting cases that have developed and is an
example. Right now, there's a dispute in Siskiyou County concerning
whether or not the public trust doctrine extends to the extraction of
groundwater that affects the flow in the Scott River. And I don't know
how that case is ultimately going to be resolved. But there are a number
of cases that have attempted to extend the public trust doctrine in order
to protect environmental resources. And again, I don't know how that case
is going to be resolved. But if the state were genuinely interested in
trying to protect those environmental resources, the exercise of the
police power could accomplish that probably as effectively, if not more
effectively than the application of public trust doctrine.
>> Tom Holyoke: Public trust doctrine hasn't been used at least yet in
any of the issues regarding management of the delta?
>> Tom Birmingham: Well, not directly. But if you read the decisions like
D-1641, which is a--one of the more recent decisions by the State Water
Resources Control Board, there is an analysis in there that indicates
that in fact the State Water Resources Control Board in issuing that
decision did consider public trust resources in the delta. But I think
that in virtually any significant decision issued by the State Water
Resources Control Board, it will contain some analysis of the public
trust doctrine simply to ensure that the--no one will be able to
challenge that decision based on the application of their--or based on
their failure to consider the application of the doctrine.
>> Tom Holyoke: OK. So how long did you stay in private practice as an
attorney?
>> Tom Birmingham: Well, I was with Kronick from 1986 through 2000, so 14
years.
>> Tom Holyoke: OK. Did you go then from that firm to Westlands?
>> Tom Birmingham: Yes. In the summer of 2000, I was asked by the
Westlands Water District board of directors to apply to become the
general manager. And it was the late summer of 2000 when I was asked to
become the general manager of the district.
>> Tom Holyoke: OK. And you replaced--was it David Orth you replaced?
>> Tom Birmingham: Yes.
>> Tom Holyoke: OK. OK, so let's talk a little bit about Westlands. It's-I understand it's the largest water district in the west?

>> Tom Birmingham: Well, you know, there are lots of myths involving
Westlands Water District and this may be one of them. I don't know if
Westlands is the largest water district in the west. It depends on how
you define it.
>> Tom Holyoke: Say in terms of acreage or 600,000 acres.
>> Tom Birmingham: Well, in terms of irrigable acres, acres that are
capable of being irrigated, it is the largest retail water district in
the west. Metropolitan Water District of southern California as an
example has a much larger service area than does Westlands Water
District. But Metropolitan sells water to other agencies who then retail
it to their customers. The Imperial Irrigation District in terms of total
acreage is larger than Westlands Water District. But in terms of
irrigable acres, I believe Westlands is the largest retail irrigation
district in the west or in the United States.
>> Tom Holyoke: OK. What attracted you to this job?
>> Tom Birmingham: Honestly, a great affection for the people who farm in
Westlands Water District. I had a relatively successful law practice. But
in 2000, Westlands Water District undertook an action that was pretty
controversial. We knew that it was going to be controversial when it was
undertaken. And I was asked by the president of the district at the time
that if we undertake this action, we need to know that you're going to be
with us. And there was an awful lot of political controversy over the
action that was taken by Westlands and some of the clients at Kronick,
Moskovitz asserted that there was a conflict, I don't think that there
was a legal conflict but there certainly was a political conflict. And at
the time, I had the option of either abandoning Westlands which I was not
going to do, or leaving the law firm which at the time probably would
have significantly harmed the law firm. And I felt a loyalty to that law
firm and I--So I didn't want to leave the firm and continue private
practice with a different firm or on my own. And so, when David Orth, who
was then the general manager resigned and I was asked to become the
general manager, it created an opportunity where I thought that I could
fulfill my responsibility, my duty of loyalty to the district and not
harm the law firm. And so it really was a sense--out of a sense of
loyalty to Westlands Water District. But that sense of loyalty was based
on the great affection that I have for the people who farm in Westlands
Water District. I've never understood why Westlands gets such a bad rap.
I mean as an example there's--one of the myths is that Westlands is
dominated by large corporate agribusiness. I don't know what is
inherently wrong with a corporation conducting business. But I can--I
know from personal knowledge that the people who farm in Westlands Water
District are family farmers in every sense of the word. They are
incredibly philanthropic. They are generous. And they're all--with maybe
some very limited exceptions, they're all decent human beings who are
genuinely interested in doing the right thing. And so I can't speak
highly enough of the people who farm in Westlands Water District. And
today, it's men and women. And their ingenuity, their ability to adapt is
just phenomenal to me.

>> Tom Holyoke: Well, it seems like the image issue, I guess we can call
it, that Westlands has had, you know, goes all the way back to really the
creation of the district back I guess in the 1950s. And then I guess a
lot of it got caught up in that 160-acre limitation of the reclamation
law, an issue that was essentially resolved long before you probably even
go to law school.
>> Tom Birmingham: Well actually, no, it was not resolved when I got out
of law school. It was still a big issue when I got out of law school. In
1982, George Miller was the author of the Reclamation Reform Act of 1982,
which modified the acreage limitation laws under federal reclamation law.
But, you know, even that, I think Westlands is the epitome of the acreage
limitation laws having worked. When Westlands was formed in the 1950s,
there were four very prominent land holders in the district. And it's
interesting to look at ownership maps in the district and the degree to
which the application of the acreage limitation laws affected ownership.
So today, there are more than 2600 land owners in Westlands and that is a
direct result of the application of acreage limitation laws. There are
people in Westlands who if you ask them how they became farmers of
Westlands, they will tell you, "Well, I was able to buy land within
Westlands at a dry land value because of the application of the acreage
limitation laws." And were it not for those acreage limitation laws, they
would never have been able to purchase land in Westlands. And today,
these are people who are very prominent, successful farmers in the
district.
>> Tom Holyoke: Yes. When we interviewed Jack Woolf, he talked very
precisely about buying land off Russell Giffen because of the 160-acre
limitation and he of course is a successful farmer.
>> Tom Birmingham: Well, he is. His family--but I mean the Woolf family
is a classic example. I mean, the Woolf family probably operates on one
of the largest farms in the district. But it's a family farm. I mean
every single day the Woolf children, Jack Woolf's children go out and
operate that farm. They're involved in the day to day operations of the
farm. And the fact that it's a large family and it's a large farm doesn't
detract from the absolute fact that it is a family farm.
>> Tom Holyoke: Since we're on the image issue, another one of the
criticisms Westlands has always come in for--and I guess put into some
degree of prominence by the environmental working group is that Westlands
water supply is heavily subsidized by the federal government, that this
is the federal government providing cheap water to wealthy farmers.
>> Tom Birmingham: I don't even know how to begin to respond to that. And
it speak--You know, I've read environmental working group analysis. And,
you know, it's interesting the way that a number of environmental
organizations and very prominent environmentalists work. They start a
narrative and they say it long enough and people begin to accept it. The
environmental working group came out with a paper a number of years ago
and said, "Look at the difference between what farmers in Westlands pay
and the--what people in the city of Los Angeles pay for water from the
same source." The people in the city of Los Angeles are paying four times
as much as the farmers in Westlands. And that clearly demonstrates that

the farmers in Westlands aren't paying a market price for the water. And
that simplistic analysis ignores the way in which every agency in the
state of California charges its end users for water. If you compare the
cost of delivering an acre foot of water to the south end of Westlands
water district, the Metropolitan Water District and Westlands Water
District pay almost an identical cost. We pay to store the water in
reservoirs. We pay to pump the water out of the delta. We pay to pump the
water into San Luis Reservoir. We pay to convey the water down the
California Aqueduct and in--or the San Luis Canal, which is the same
facility. It's owned by the United States but it's a joint use facility.
We pay to pump the water at Dos Amigos and we're--so we're paying all of
those same costs. But the end user in Los Angeles then pays to convey the
water down the California Aqueduct to the Tehachapi Mountains, pays the
cost of pumping the water up over the Tehachapi Mountains, then pays the
water to store--pays the cost to store water in reservoirs in Southern
California, then pays the cost of treating the water so that it can be
used for domestic purposes. And so, it shouldn't surprise anyone that
somebody in Los Angeles is paying more for water than a farmer in
Westlands Water District. It costs more to deliver water to them in
Southern California than it does to deliver water to farmers in Westlands
Water District. But this notion of the subsidy, some--There is a subsidy,
and let's not argue about that. For some users of water in Westlands,
they pay what is known as a cost of service rate. And that cost of
service rate does not include interest on the capital that was expended
by the United States to build the facilities. There are some water users
in Westlands who actually pay interest on that--on those capital costs.
Those users pay what is referred to as a full cost rate which is the cost
of service rate, the cost to build the facilities, the cost to operate
and maintain those facilities and then interest on the capital that was
expended by the government to build facilities. But if you stop and think
about it, I don't know of any person in the state of California that
receives water from a public agency that doesn't receive some form of
subsidy from the federal government. I mean as an example, you know, pick
any agency you want. Let's pick the city of San Francisco. City of San
Francisco recently completed an upgrade to its Hetch Hetchy system. When
it did those upgrades, it used tax exempt bonds to fund the construction
associated with those upgrades. The fact that those bonds are tax exempt
is a subsidy from the federal government. When an agency in Southern
California issues tax exempt bonds to build facilities to deliver water
to their customers, that tax exemption is a subsidy. And so, the thing-one of the things that frustrates me the most about very, very important
issues of water policy in the state of California is that people use
rhetorical terms that really mask the important issues. Let's have an
honest debate about water policy, rather than demonizing one group or the
other. You know, it may be a very legitimate public policy decision to
say we're no longer going to use water to irrigate the west side of the
San Joaquin Valley. Now that's a decision with which I would personally
disagree. But it may be a very legitimate public policy decision. But
let's base that decision on accurate facts, accurate data as opposed to
saying, "Oh, well these are guys that get a subsidy." Well, every water
user in the state of California that gets water from a public agency is
benefiting from some form of subsidy.

>> Tom Holyoke: OK. So the other argument that I've heard sometimes made
is that maybe given the drainage issues, maybe a lot of the land in
Westlands shouldn't have been brought into production in the first place.
>> Tom Birmingham: I too have heard that. You know, this goes back to the
discussion we're having earlier about environmental consequences of using
water. With very few exceptions, there are not many regions in the state
of California that could exist without water being imported from some
distant part of the state, or in the case of Southern California from
distant states. I mean the Colorado River arises in Wyoming. And so, you
know, Metropolitan Water District is enjoying the use of that water.
People in San Diego and Long Beach and other cities in Southern
California are enjoying the use of that water that originates in the
state of Wyoming. But as it relates to the drainage issue, when the
Congress authorized the construction of the San Luis Unit, it directed
the Secretary of Interior to develop a plan to deal with the potential
environmental consequences of irrigating lands that would need drainage.
And part of the problem is the Secretary of the Interior never
implemented that plan. But, you know, if we're going to start making
decisions saying, "Well, this area should not have been developed whether
it's a city or an agriculture area because there are insufficient water
resources available in the immediate region to serve those needs," then
we're going to have to talk about the city of San Francisco. We're going
to have to talk about Silicon Valley. We're going to have to talk about
the East Bay. The East Bay imports its water through a peripheral tunnel
from the Mokelumne River. We've got to talk about the city of Los
Angeles. The entire central coastal region of the State of California
extending and as well as, you know, the Metropolitan area of Southern
California. All of these regions depend on the ability to import water
from distant places, whether it's in the State of California or outside
of the State of California.
>> Tom Holyoke: Any thoughts as to why Westlands is in such a target for
environmentalist? And even members of Congress like former Congressman
George Miller, it seems to me they could've just as easily beat up on the
Imperial Irrigation District.
>> Tom Birmingham: Well, I think imperial--I'm not going to be critical
of Imperial Irrigation District. Imperial has its own critics, but I
think that the simple answer to your question is Westlands is big. And,
you know, it's interesting when we look at water use on the San Joaquin-on the west side of San Joaquin Valley. Everyone talks about allocations
to Westlands Water District from the Central Valley Project. And it's--we
don't need to worry about this because it's just Westlands Water
District. Well, in fact, there are, I don't know, 25 or 26 other
districts that are smaller that extend from the city of Tracy to
Westlands northern boundary that also get exactly the same allocations
that Westlands gets. But it's always discussed in terms of Westlands
Water District. And again, I think it goes back to the notion that there
a lot of people who'd like to try and resolve important issues by making
the issues as simple as possible. And unfortunately, that's not the world
in which we live.

>> Tom Holyoke: OK. Let's talk about--I guess the issues used that
Westlands has been having, I don't know, but since 1992, with the CVPIA
but the cutbacks on water deliveries because of concern over fish in the
delta. Is this traced back in 1992? Is that a good place to sort of start
that history?
>> Tom Birmingham: Well, it--the drought of the late '80s, early '90s, is
a good place to start that history. And people focus on 1992 because
that's the year in which the Central Valley Project Improvement Act was
enacted. It's also the year in which the first biological opinion for the
protection of winter-run salmon was issued. And so, 1992 is a fair place
to start, yes.
>> Tom Holyoke: OK. So, Central Valley Project Improvement Act. It takes
at least 800,000 acre feet out of the Central Valley Project to hold that
water into the delta, essentially to let the water flow into the ocean,
right?
>> Tom Birmingham: Well, that's--that too is a little simplistic. The way
I would describe it is the implementation of the Central Valley Project
Improvement Act reallocated in excess of 1.2 million acre feet of water
from agricultural use to environmental uses. And the reason that I'd say
that is it involves not only the 800,000-acre foot provision that you've
referenced but it involves the delivery of water to manage wetlands,
though level two refuge supplies that are described in Section 3406(d) of
the Central Valley Project Improvement Act. And then it also involves the
implementation of the Trinity River Record of Decision that was developed
to implement Section 3406(b)23 of the Central Valley Project Improvement
Act. And in the aggregate, those three provisions, Section 34069(b)2,
Section 3406(d), and Section 3406(b)23 of the act resulted in the
reallocation of more than 1.2 million acre feet of water from farmers to
environmental uses. And when the act was being debated in Congress, one
of the arguments that was made was, "Well, this is going to result in an
average of 10% reduction in water supplies for the farmers that receive
water—under water service contracts within the Central Valley Project."
And that probably was a pretty accurate statement. But unfortunately, the
10% average was imposed almost exclusively on the water service
contracts--water service contractors that are south of the delta that
receive water diverted or re-diverted at the Jones Pumping Plant, what
was formally known as the Tracy Pumping Plant. And the 800,000-acre foot
provision that you're referring to didn't--wasn't implemented solely
through the reduction of rates of pumping at the Jones Pumping Plant. It
involved other actions including the use of what's referred to as B2
water upstream to provide additional flow for fish or to hold water for
the benefit of fish and storage. So it's just not pumping reductions in
the delta, all the pumping reductions in the delta certainly have made up
a large part of the use of B2 water. But here again, I mean here's
another interesting narrative that has been developed by the
environmental community. There's an assertion that this B2 water is
supposed to be used for the implementation of the Anadromous Fish
Recovery Program. Well, that's not what the act says. The act says that
the 800,000-acre foot yield provision is to be used to implement the fish
wildlife and habitat conservation purposes of the act, which is well
beyond the AFRP or the Anadromous Fish Recovery Program. There's a

narrative that has been repeated often enough that it's now believed by a
lot of people, that the Central Valley Project Improvement Act mandates a
fish doubling of anadromous fish. Well, that's not what the act says. The
act says that the Secretary of the Interior is directed to do those
things that are reasonable to accomplish a fish doubling, doesn't mandate
a fish doubling. It mandates doing those things that are reasonable to
accomplish it. So if there are things that are necessary to accomplish
the fish doubling that are unreasonable, the act, it doesn't require that
they be undertaken. And I cite this just as an example--another example
where an assertion has been repeated often enough that it's--actually is
now accepted as gospel.
>> Tom Holyoke: So any sense as to what reasonable and unreasonable mean
in this case?
>> Tom Birmingham: Well, you know, it's--you know, there was--I believe
it was Justice Stewart when he was talking about obscenity, said that,
you know, he couldn't define it but he knew it when he saw it. I think
the same thing is true here and part of the important point is it really
is in the eye of the beholder. I mean, I can promise you, I will never be
the Secretary of the Interior. But if I were, what I think is reasonable,
probably would be significantly different than what Jared Huffman who is
a congressman from Marin County would think is reasonable if he were to
become the Secretary of the Interior.
>> Tom Holyoke: So the lawsuits that seemed to have erupted in I guess
starting in the later 1990s, they seem to, at least ones I'm aware of,
largely seem to center around the application of the Endangered Species
Act.
>> Tom Birmingham: Well, there have been many lawsuits that have involved
the application of the Central Valley Project Improvement Act or its
implementation and the implementation of the Endangered Species Act. The
more recent cases have involved the implementation of the Endangered
Species Act.
>> Tom Holyoke: OK. Endangered Species Act as I understand makes
essentially no provision for any impact that--well, change that.
Understanding Endangered Species Act essentially requires the government
to do everything in its power to prevent a species in going extinct
regardless of how that remedy might impact, well, human civilization, Is
that a fair characterization of the act?
>> Tom Birmingham: That's probably a fair characterization of the way the
act has been interpreted by the courts.
>> Tom Holyoke: OK. And what's--and has this been the primary source of
trouble for Westlands and other growers in terms of, well, the pumps
being turned off, not being able to, you know, fill San Luis reservoir
and get your allocation down here at Westlands? I mean is it really laid
at the feet of ESA?
>> Tom Birmingham: In large part, it is. But when you say laid at the
feet of the Endangered Species Act, I don't think that anybody's saying

that they would like to see the species that rely on the Sacramento-San
Joaquin Rivers Delta go extinct. And I don't think that it's farmers
versus fish. That really is a false narrative. But when there are--I mean
look at the last three months, there were days in which we had 75,000
cubic feet per second of delta inflow. That's 150,000 acre feet of water
over a 24-hour period flowing into the delta. And we were able to pump at
the Jones Pumping Plant 2,500 cubic feet per second when the capacity is
4,600 cubic feet per second. And the restrictions were being imposed at a
time when there weren't any delta smelt in the vicinity of the pumping
plants wherein an area that would be affected by the influence of those
pumping plants, and it's hard for us to understand those types of
decisions. And it's not a partisan issue. I mean, you see letters that
were virtually identical sent from Senator Feinstein to the White House
and Republican members of the house--to the White House saying, "Increase
pumping. Under these circumstances, increase pumping." And so, there's an
awful lot of frustration surrounding the way in which the Endangered
Species Act is being implemented, but there are so many critically
important nuances that it's really hard to generalize about this subject.
>> Tom Holyoke: Well, who's making the interpretation of the Endangered
Species Act then that leads to shutting down the pumps?
>> Tom Birmingham: Well, it depends on the species that we're talking
about. If it's the delta smelt as an example, that comes within the
jurisdiction of the United States Fish and Wildlife Service. And so, the
regional director of the Fish and Wildlife Service is making decisions on
how to implement a biological opinion that was developed to prevent the
operations of the Central Valley Project and the State Water Project from
jeopardizing to continued existence of that species or causing adverse
modifications to that species' critical habitat. If we're talking about
other species, anadromous species like salmon or sturgeon, then those
anadromous species come within the jurisdiction of the National Marine
Fishery Service which is part of the department of commerce. And so, it's
the regional director of NOAA fisheries that's making the decisions
concerning an implementation of a biological opinion issued in 2009 to
protect those species.
>> Tom Holyoke: The biological opinions regarding the delta smelt that
were issued by US fish and wildlife. At least the cases that I've seen on
this and I'm sure it's just a small sampling but many cases on this, I
get the impression that the biological opinions themselves have been, you
know, rewritten, rewritten, and rewritten largely because of litigation
concerns. You know, US fish and wildlife starts issuing biological
opinions regarding the smelt, the environmentalists sued them because the
biological opinions didn't lead to more shutting down of the pumping
plants. The biological opinions almost seem to have been rewritten to
avoid further litigation, only to have been litigated again by growers
that felt the biological opinions got it wrong.
>> Tom Birmingham: Well, I mean again, that's--you've asked multiple
questions if I were still practicing law say objection, objection
compound. But there are biological opinions dating back to the early
'90s. I think as I said earlier, the first biological opinion for winterrun I believe was issued in 1992. And shortly thereafter, there was a

biological opinion for delta smelt and then there were subsequent
biological opinions issued in 1995. And then again in I think 2005. And
it was those 2004, 2005 biological opinions that were the subject of
litigation filed by a number of conservation organizations. And the
court, the district court found that those biological opinions didn't
comply with the law and so remanded the biological opinions to the
agencies so they could develop new biological opinions. As a result of
that litigation, we got the 2008 Delta smelt biological opinion and the
2009 salmon biological opinion. And there were water agencies, not just
farmers, but water agencies around the state, and the State of California
actually sued to challenge the validity of those opinions and the
district court found that they were inconsistent with the law.
Ultimately, part of that decision was reversed on appeal by the Ninth
Circuit. But, you know, it was—-there is a long history concerning the
litigation over implementation of the Endangered Species Act as it
relates to the operation of the Central Valley Project and the State
Water Project.
>> Tom Holyoke: Is it in the contention of many growers that US fish and
wildlife is not using the best available science in writing their
biological opinions, sorry, believe is required?
>> Tom Birmingham: Well, I mean the direct answer to your question is
yes, that is a contention made by farmers but is also a contention made
by the state of California and by urban agencies around the state
including Metropolitan Water District to Southern California. The law
requires the decisions made under the Endangered Species Act be based on
the best scientific and commercial data available. And again, it's, you
know, the Ninth Circuit had issued an opinion and I think that in some
ways the Ninth Circuit got it wrong. But from a practical standpoint,
it's difficult to understand when scientific analysis is being done and a
decision is made to exclude certain data because those data will lead to
a result that is inconsistent with the result that the fishery agencies
want. It's difficult to understand how the exclusion of those data, are
consistent with the rule that the agency use the best scientific and
commercial data available in making those decisions. And that was one of
the reasons that the district court found that the 2008 biological
opinion was inconsistent with the law, that in preparing some of the
analysis, the Fish and Wildlife Service actually made the decision. We're
going to exclude those data. And the Ninth Circuit, in its decision was
critical of the district court. The Ninth Circuit thought that the
district court was substituting its judgment for the judgment of the
fishery agencies and the Ninth Circuit said that fishery agencies are
vested with authority under the law to determine what is the best
scientific and commercial data available. But I don't think that that's
was the district court found. The district court wasn't substituting its
judgment, it was just saying, "Here are these data, why didn't you
consider them? You need to consider them. You've provided no explanation
as to why you didn't consider them." And so ultimately, as I said, the
Ninth Circuit disagreed with that analysis, but I think that you can
point to example after example after example where objective scientists
have said, "We don't understand why these data were excluded, or we don't
understand how these data leads to this conclusion." I mean as an
example, the 2008 and 2009 biological opinions were the subject of review

by the National Academy of Sciences, which is an independent group. And
they wrote a report on the biological opinions and like a lot of reports,
people can find what they want in the NAS report. But, you know, there
are many places where the National Academy of Sciences had said, "We
understand the basic theory underlying this action that is prescribed by
the biological opinion but we fail to see how these data led to this
conclusion." And one of the elements of federal administrative law, not
part of the administrative--I'm sorry, not part of the Endangered Species
Act but part of the Administrative Procedures Act is when a federal
agency makes a decision, it's supposed to articulate the basis for that
decision and if it's relying on data, how those data led to the decision
that was made. And in--as it relates to the biological opinions, there
are lots of objective scientists who say, "We look at these data and we
look at these opinions and we don't see how the--this conclusion was
reached and there's no explanation for how the conclusion was reached.
And we think that that's inconsistent with the law."
>> Tom Holyoke: I guess a concern I've heard expressed by many farmers is
that regulators have become almost obsessed with the operations of the
pumping plants and then therefore have been, for whatever reason, have
refused to consider other explanations for decline of the delta smelt
population I guess alternative stressors is the term I've heard.
>> Tom Birmingham: I don't think that agencies have refused to
acknowledge that there are other factors that limit the abundance of
these species. But they haven't taken many actions to limit the effect of
those other factors on the species. And I think that there are a lot of
people who would say that the restrictions placed on the operation of the
two projects, particularly the pumping plants in the south delta have
been imposed to mitigate the impact of those other limiting factors. And
it's--again, I think that there are some pretty good examples of that.
There are restrictions imposed even up--on upstream operations of
reservoirs that are intended to mitigate the impact of other limiting
factors on fish that migrate up those rivers. And so it's a difficult
problem. But for the agencies, the fishery agencies that are charged with
the implementation of the Endangered Species Act, the easiest nob for
them to term is the projects. And so they--the federal government, the
Bureau of Reclamation is obligated under Section 7 to consult on the
operation of those projects and so it creates a vehicle for the fishery
agencies to impose these restrictions.
>> Tom Holyoke: So is the Endangered Species Act itself the statute in
need of reform or is this simply a matter of the way it's being
implemented?
>> Tom Birmingham: Well, the Endangered Species Act is now 43 years old.
And I don't know very many laws that are 43 years old that couldn't stand
some adjustment. And I think that there are elements of the Endangered
Species Act that could stand some adjustment. Let me cite one example.
The Endangered Species Act requires that the fisheries services take a
species by species approach. And so as it relates to say the Central
Valley Project, we have a smelt biological opinion that is designed to
protect the smelt from extinction. And then we have a biological opinion
issued for winter-run salmon by a different agency that is intended to

protect the winter-run Chinook salmon from extinction. And those two
biological opinions conflict with one another. There are requirements in
the smelt biological opinion that in some cases requires certain amounts
of outflow. And those requirements conflict with requirements in the
salmon biological opinion that Bureau of Reclamation maintain water in
storage to protect cold water pools for the benefit of spawning salmon.
And you cannot comply with one without violating the other. And one of
the criticisms that I've heard of the Endangered Species Act is that
species by species approach ignores the reality, and we should look at
protecting species on a more holistic basis. And I think there's some
validity to that. And, you know, another classic example. Last summer
there was a big controversy over whether or not the Sacramento River
settlement contractors, were going to be able divert water under their
contracts with United States. The National Marine Fishery Service or NOAA
Fisheries was taking the position that the Bureau of Reclamation had to
conserve water in storage to protect cold water for the benefit of
salmon. And the Fish and Wildlife Service is saying "No, that water has
to be released so that the water can be diverted to create habitat for
the giant garter snake in the Sacramento Valley." Another listed species
protected by a biological opinion. And so these two provisions are
conflicting with one another. Fortunately, we were able to work out an
agreement where agencies including Westlands paid the farmers not to
divert the water, to keep it in storage for the benefit of fish, but we
had to balance that with the needs of the giant garter snake. And so, it
was--you know, I know this is not related necessarily to your question.
But when I practiced law I had a client that owned a diversion facility
on a stream tributary to the Sacramento River. And one of the most
comical sites that I ever saw was we were on a field visit to this
diversion facility and my client had removed some boards in this
diversion facility so that salmon in the stream could migrate up past his
diversion facility. And there was a fellow from the Fish and Wildlife
Service with his uniform on, his Fish and Wildlife Service patch,
demanding that those boards be put back into the diversion facility so
that water could be diverted to manage the wetlands being operated for
the benefit of waterfowl. And there was another fellow from the Fish and
Wildlife Service with the same uniform on, the same patch on, demanding
that the boards be taken out so the salmon could migrate upstream. And
it's--we find that same kind of conflict in the implementation of the
Endangered Species Act as it relates to the operation of these projects.
So again, going back to your question, is it the act itself? There are
some things in the act that can be improved. But there are also many
things that could be improved in connection with its implementation. So
it's really both. It's really the act itself and the way it's
implemented.
>> Tom Holyoke: The cutbacks in deliveries to Westlands growers that
we've seen in the last 20 years whether they're indirectly attributive of
the ESA or other things. What's been the scope of the damage to Westlands
from the water cutbacks?
>> Tom Birmingham: To Westlands itself?
>> Tom Holyoke: You can start there.

>> Tom Birmingham: Well, the damage to Westlands itself has not been
significant. But when you look at the impact the damage caused to the
farmers that Westlands serves and the communities that Westlands serves
and to the people who live and work on the west side, it's been
catastrophic. I don't--can't think of another word to describe it. It is
a catastrophe. And you could drive onto the west side of San Joaquin
valley and there are these little towns that were once vibrant towns that
literally are drying up and blowing away. And that is a consequence of
the water--chronic water supply shortages that we have seen since the
early '90s. And unfortunately, those water supply shortages have only
gotten worse and worse. In 1992, I would have said that our average
delivery was 95%. Our water supply was only cut back in the most extreme
drought periods. And when I say drought, I mean hydrologic droughts. In
1994, or '95, after the implementation of what was called the Bay-Delta
Accord; our reliability went down to 75%. In 1997, when the Department of
the Interior issued its decision related to the implementation of Section
3406(b)2 of Central Valley Project Improvement Act, our reliability went
down to 55 or 60 %. And when the new biological opinions were issued in
2008 and 2009, our reliability went down to 35 or 40%. And so, it's--the
harm as I said is really catastrophic. There is environmental harm. We
are beginning to see subsidence on the west side that's similar to the
subsidence that we saw prior to the construction of the San Luis act--I'm
sorry, the San Luis Unit. And the irony there is the San Luis Unit was
authorized to avoid that type of subsidence.
>> Tom Holyoke: Subsidence from groundwater over pumping?
>> Tom Birmingham: From groundwater over pumping, yes. But we've—in areas
north of the district, we've seen environmental harm to species. We've
seen--As an example, there are areas north of Westlands that are habitat
for the giant garter snakes, the same species we were talking about a few
moments ago in Sacramento Valley. Those species have been harmed as a
result of the water supply reductions because the Central Valley Project
that supplies water to Westlands also supplies water to those managed
wetlands. But the farmers have suffered enormous economic losses and the
communities are just--have been devastated. You know, one of the things
that I get to do in my job is I deal a lot with elected officials. And we
had a high level elected official from Congress out on a tour one time
and he was--at the time, he was the majority leader of the house. His
name was Steny Hoyer. I generally don't use names but Steny Hoyer was out
and we're having a tour with Jim Costa, Dennis Cardoza who were the two
members of the House of Representatives representing San Joaquin Valley.
And we were in the town of Mendota and we were there on a day in which
they were handing out food. And Steny Hoyer who's just a nice, nice man,
got out of his vehicle and was walking up and down the food line,
observing what was going on and he start to tear up. And, you know,
that's easy to understand because you can't imagine that in this country,
there would be--the federal government would be implementing policies
that would result in people having to stand in food lines. You know,
sometimes they would stand--you know, was a story in the Sacramento Bee
about people standing in food lines in the city of Mendota for four hours
and a mother and her two young sons got to the front of the food line
only to be told that they'd run out of food. And, you know, one of the
things that I encourage elected people to do, you want to understand the

consequences of chronic waters supply shortages? Go any place and go up
to any house in the city of Mendota or the city of Huron or the city of
San Joaquin and walk up, knock on the door and ask to look and see what's
in your refrigerator. It's unconscionable. It is really unconscionable.
And, you know, it goes back to your question. Well, maybe this land
shouldn't been farmed in the first place. Maybe it shouldn't been but it
was. And the notion that we can sacrifice these communities because maybe
this land shouldn't have been developed 50 or 75 or 100 years ago in
irrigated agricultural production, is just so inconsistent with every
concept of environmental justice that I've ever understood that it's
almost unreal. And I've actually heard people say that, "Well, you know,
the city of Mendota, they--the city of Huron, the city of Tranquility,
the city of San Joaquin, Firebaugh, all of these towns have a high
unemployment rate anyway, so what difference does it make?" Well, I heard
exactly the same thing in 2005 or 2006 when the city of New Orleans was
hit by Katrina and people are saying, "Well, you know, these people are
poor anyway, we don't need to rebuild the city." And the outrage at that
kind of comment was justifiable. But I don't hear a comparable outrage
when I hear people say "Well, you know, unemployment rate in city of
Mendota is at 45%." That's OK because it's got a high unemployment rate
anyway." You know, it's just--it's unbelievable to me that there are
people who worship at the altar of the environment who are willing to say
that's OK. They shouldn't have been there in the first place.
>> Tom Holyoke: You had people like Congressman Hoyer out there. You've
had the President of the United States out there and yet this hasn't
translated into getting legislation to the Congress. What's the barrier
there?
>> Tom Birmingham: Well, there are many barriers there. But having people
like Steny Hoyer out there, I wouldn't want you to conclude that it
hasn’t had some benefit. There are people who are critical of members of
Congress. You know, people like Dianne Feinstein, she hasn't done enough.
Jim Costa hasn't done enough. And these are people that I work with every
day, and I can point to examples where their actions resulted in an
immediate and direct water supply benefit. And so although legislation
hasn't been enacted, there are people in Washington, there are people in
Sacramento who genuinely want to get something done. But the barriers to-I mean, the most immediate barrier to getting legislation enacted is the
gridlock that exists in Washington DC. And I don't want to be critical of
any member of Congress that represents the San Joaquin Valley, but
sometimes I have a difficult time understanding their strategy. I look at
bills that have been introduced by Senator Feinstein and comparable bills
that are introduced by people like David Valadao or Devin Nunes. And
despite all of the rhetoric, when you look at the bills, they're
virtually identical, and they get to almost the identical place and yet
we have a political debate that seems to get in the way of actually
passing some meaningful legislation.
>> Tom Holyoke: I’m reminded that years ago, Senator DeMint heavily
politicized lessons in delta operations [inaudible] Feinstein wanted to
break your nose.

>> Tom Birmingham: No, she didn't say that. She said she wanted to punch
me.
>> Tom Holyoke: Oh, OK. Yes, that's->> Tom Birmingham: And actually, she didn't say that she wanted to punch
me. I want to be completely accurate. She ran into me at a meeting in
Washington DC shortly after that happened, and she came up to me and I
think she was at least half joking. And she held up her fist and she said
"Tom. Tom, I'm so mad. I'm so mad I could punch you." And unfortunately
she said that within ear shot of a reporter and it got some wide
publicly. But Dianne Feinstein is someone for whom I have a great deal of
respect and admiration for a lot of reasons. And--But, you now, I have
the same respect and admiration for people like David Nunes and Kevin
McCarthy and others. And so, you know, people always ask me, "How can you
work with--How can you work with Dianne Feinstein on the one hand and Tom
McClintock on the other?" And my response is "I'm a public official, and
I'm going to work with anyone who is interested in finding a solution to
these problems." And Dianne Feinstein on one hand and Tom McClintock on
the other, they have different approaches. But I think when you boil it
down, they want to get to basically the same place which is we need to be
able to meet the needs of the people of the state of California when it
comes to demands for water.
>> Tom Holyoke: Speaking of solutions, it seems that Westlands has been
supportive at least the concept promoted by Governor Brown of digging
tunnels into the Delta, so that it brings Sacramental River water close
to the pumps. This is something that Westlands feels can be a solution to
some of your problems?
>> Tom Birmingham: It has--I would describe the project a little bit
differently than you did. I mean, people use the term the tunnel project
for shorthand. But really what we're talking about is moving the intakes
for the pumping plants that are in the south delta, to the Sacramento
River. And the reason that I described it that way is the water that
those pumps are diverting or re-diverting, is Sacramento River water. And
under the environmental laws that have been implemented not just since
2008 and 2009, the restrictions placed on the operations of the pumping
plants in the Delta are restrictions that prevent us from moving
Sacramento River water to the pumping plants in the south delta. And so,
what Governor Brown is proposing is simply moving the intake. So rather
than trying to convey water across the delta through the natural and
artificial channels that exist in the delta, we'll put it in tunnels, and
we will eliminate problems like reverse flow in all the middle river. We
will eliminate the entrainment of fish at the pumping plants in the south
Delta--you know, if we're not diverting water out of the south delta,
we're not going to be taking delta smelt that are in the south delta. So
it is a potential solution. But this is not something that was proposed
by Governor Brown even in his current term as governor, nor was it first
proposed by Governor Brown in his first term for governor. You know,
it's--you can go back and look at historic documents. 1964, the Bureau of
Reclamation wrote a report that said, "If we continue to move water
through the Delta through these means, here are some of the problems that
we are going to encounter. And the--everything that they described in

1964 has proved to be accurate. The California Department of Fish and
Game, now the California Department of Fish and Wildlife, has for decades
proposed moving water through some artificial channel to avoid the
conflict between efforts to protect fish in the delta, and efforts to
supply water. I mean, if you start and think about it, the delta today is
an artificially fresh estuary. In a state of nature, the delta was a
fluctuating delta, meaning that the concentrations of saltwater moved
well into the delta during dry periods, dry years or during dry seasons.
So that saltwater would make its way all the way to the city of Stockton,
or all the way to Freeport on the Sacramento River. Well today, because
we move water through the delta, we maintain a salt barrier on the
extreme western part of the delta. And so, native fish that like the
delta smelt that evolved in this fluctuating estuary, are now in an
artificially freshwater estuary, and they're having to compete with
species that are--that evolved in freshwater estuaries. And so, you know,
I guess the point that I'm trying to make is that, this is not just
Governor Brown's solution, it's a solution that we have been talking
about for at least 50 years. And there have been multiple iterations of
it. But in 2000, long before Governor Brown was governor in his second
term--or a third term, I guess, excuse me, there was a proposal to as
part of the CALFED program to build isolated conveyance in the delta. And
the decision was made at the time no that is it's too politically toxic
to talk about building isolated conveyances, facilities in the delta. So
we're going to try and make the through-delta process work. And what
we've learned over the course of six short years was that through-delta
system simply was not going to work if we wanted to be able to restore
water supplies to areas that receive exported water from the Central
Valley Project and State Water Project. And so in 2006, we began the
current planning process for what's become known as Governor Brown's
tunnel project.
>> Tom Holyoke: And does it turn out to have been too politically toxic
be brought up?
>> Tom Birmingham: Yes.
>> Tom Holyoke: No shortage in critics?
>> Tom Birmingham: Well, it has no--you're absolutely right. There's no
shortage of critics. It's a difficult political issue. But in my
experience has been when you sit down and you talk about the construction
of isolated conveyance facilities in the delta and what you hope to
achieve through the construction of those isolated conveyance facilities,
most people say, "Well, why haven't we done it?" And, you know, there are
a lot of people in the delta who view this project as an existential
threat to their existence. I think that that's a little bit exaggerated.
But, you know, generally when you sit on and talk to people about the
concept, they begin to understand it. Now, it's awfully expensive. I
don't know what the criteria would be to operate these facilities and
Westlands position has been we are not going to indebt the farmers in
this district for billions of dollars if it's not going to result in a
restored water supply. And those issues have yet to be resolved.

>> Tom Holyoke: Westlands has put in a fair amount of many to some of the
early studies.
>> Tom Birmingham: Yes, that's correct. Tens of millions of dollars have
been spent by the district in the initial planning phase of the project
since 2006.
>> Tom Holyoke: Was the original peripheral canal idea supposed to
achieve more or less the same thing that these tunnels are?
>> Tom Birmingham: Yes. But the original--I mean the peripheral--when you
say the original peripheral canal, I assume you mean the peripheral canal
that was the subject of a 1982 referendum.
>> Tom Holyoke: Yes.
>> Tom Birmingham: And that facility is significantly different than the
facilities that we're now talking about. As an example, the capacity of
that peripheral canal would've been 24,000 cubic feet per second. The
tunnels that are now being proposed, I believe, have a capacity of 9,000
cubic feet per second. It was a canal, now we're talking about tunnels.
You know and when we started this process in 2006, we actually were
talking about a canal at the time. And--But we're tried to be responsive
to some of our critics; people who live and work in the delta, and they
made the observation. This is going to be a canal that has 100-foot high
embankments that's going to be as wide as a 100 lane freeway--I don't
know if that was accurate. So the decision was made. Well then, if they
object--if there's an objection to this facility being on the surface,
let's put it underground. And so, many, many changes have been made over
the course of the last 10 years to this proposed project in order to
address the concerns articulated by people in the delta who are the most
vocal opponents to the project.
>> Tom Holyoke: So if we build peripheral canal back in the '80s, would
we be in a much different place than we are today?
>> Tom Birmingham: Absolutely. If we had built the peripheral canal in
1982, I suspect a lot of the water supply shortages that we're currently
suffering would not have been experienced. Now, yeah, I think this is a
very important point. We have faced this decision about should we build
isolated conveyance facilities in the delta, multiple times over the last
50 years. And every time we faced the decision, we've said, no, we're not
going to do it for one reason or another. And we have come to regret it.
And I know that you can't make important economic decisions based on that
type of anecdotal analysis, but I'm fearful that if we decide today that
we're not going to implement the tunnel project being described by
Governor Brown, at some point in the future we will regret having made
that decision.
>> Tom Holyoke: Touch on that back at the end of all this. OK. Let's talk
about drainage for a while. First off, what is the drainage problem in
Westlands?

>> Tom Birmingham: Well, the drainage problem is not unique to Westlands
Water District. There are many areas around the world that have been
irrigated--or continued to be irrigated that have a drainage problem. And
it's a--it's not a complicated issue, but it takes some explanation. All
surface water has some salt in it. And when that surface water is used to
irrigate crops, the salt that is in the water is deposited in the soil
when it's applied to the--when the water is applied to the soil for
irrigation and that salt will accumulate over time. So there are places
like the Fertile Crescent that used--that's called the Fertile Crescent
because at one time it was fertile, but it's no longer fertile because it
had a drainage problem. And so the drainage issue in Westlands is not
unique. There are societies around the world that devote themselves to
solving the drainage problems in different regions of the world. In
Westlands, the problem exists because there--under some--well, let me
back up, I didn't complete my explanation. Unless the salt that is
deposited in the soil is leached out of the soil periodically, the soil
becomes sterile. And so, what farmers historically have done is they
apply not only the water that's needed to irrigate the crop but they
apply an additional increment of water that is intended to leach the salt
out of the soil after it's been deposited by the irrigation water. In
Westlands, we have areas where it is difficult to leach the salt out of
the soil because there's a layer of clay that's relatively near the
surface of the earth. And the water that is used to leach the salt out of
the soil accumulates and builds up to a point where it invades the crop
root zone which also makes it difficult to farm. And so, when Congress
authorized the construction of the San Luis Unit in 1960, it directed the
secretary to make provision for drainage of the San Luis Unit recognizing
that there needed to be some artificial means of gathering and disposing
of drain water and the salt that is--that is part of that drain water.
>> Tom Holyoke: OK, this problem is actually pretty well understood when,
you know, Congress passes the San Luis Act?
>> Tom Birmingham: Yes.
>> Tom Holyoke: OK. And then I guess that sort of leaves the obvious
question. And what happened? I got that you don't have a fully functional
drainage system today.
>> Tom Birmingham: No, we don't have any drainage system at all. Part of
the drainage system was built but in--and there were different means by
which the Secretary could provide drainage to the San Luis Unit, but
ultimately the Secretary decided to build an interceptor drain that would
collect drain water from the San Luis Unit and dispose of that drain
water in the western part of the delta near the Carquinez Straits. And
the San Luis drain was designed and construction began, and in the mid
1970s, Congressman Miller began attaching riders to appropriations bills
saying before the Secretary selected a final point of discharge for the
drain, the Secretary was required to develop a plan to mitigate the
impacts of the drain water on the Bay-Delta ecosystem, on the
environment. And so, the Secretary failed to complete construction of the
drain and Kesterson reservoir which was originally designed to be a
series of regulating reservoirs became the de facto terminus of the San
Luis Drain. So the land within Westlands that had been drained through

the San Luis drain was depositing the water at Kesterson reservoir where
it evaporated and that there was a discovery in the early '80s that
selenium was bio accumulating at Kesterson reservoir and it was having an
effect on waterfowl. And there are lots of famous photographs of deformed
ducks that were affected by selenium. Selenium is natural trace element
that was deposited in the soils of the San Joaquin Valley as a result of
runoff from the foothills over the millennia. And that selenium was being
leached out of the soil along with the salts that have been deposited
through the use of irrigation water. And as a result of some
controversies, some conflict, ultimately the San Luis drain was closed by
the Secretary of the Interior. The lands within Westlands that were being
drained were--lost that drainage service. In 1986, Westlands plugged the
on-farm drainage systems and the subsurface collector system that had
been built by the United States in Westlands to serve those lands was
closed.
>> Tom Holyoke: And so, what do these growers doing about drainage
problem if the system doesn't work?
>> Tom Birmingham: The growers have done a number of things to try to
have managed drain water. But one of the things the district has done is
the district has acquired and taken out of production nearly 100,000
acres of land. And those are lands that were the most severely impacted
by the lack of drainage. But there are still areas in the district where
drainage is a problem and those farmers that operate on those lands
attempts to manage their drainage problem through the use of a number of
techniques. One is they limit the amount of surface water that they
apply, so it's a source control measure. They collect drain water and
blend it with freshwater so that it can be reused. And then they, you
know, ultimately will have to find some way to collect, treat, and
dispose of the drain water on these lands.
>> Tom Holyoke: I understand a few years ago, several of the water
districts on the west side—and I assume Westlands is one--actually sued
the Secretary of the Interior over the incomplete drainage system. What
was the point of that case if Interior is not actually able to finish
this?
>> Tom Birmingham: Well, that was the question, was the secretary
actually able to finish the drain? But like so many other things, there's
a complicated history. Earlier when we're talking about my personal
experience with Westlands, the first case that I ever did with Westlands
are for Westlands, was a case that involved drainage. There were a number
of water agencies north of Westlands that alleged that the environmental
impact report prepared by Westlands to close the subsurface collector
drainage system in 1986 was inadequate and I represented the district in
litigation and ultimately the court determined that in fact, the
environmental impact report was adequate. But in 1989, a number of
landowners within Westlands that had been served by the drainage system
filed a lawsuit against the United States and against Westlands. And in
that litigation, they alleged that they have been harmed as a result of
the government's failure to provide drainage service and a result of the
districts having closed the drainage collector system. When we were sued
by those landowners, we filed a cross-claim against the United States

asserting that if there were an obligation to provide drainage service to
these lands, that obligation was the United States and that the United
States was liable, not the district. A couple of years later, those same
water agencies that had sued Westlands in 1986 over the adequacy of the
environmental review document, filed a lawsuit against the United States
asserting that they were being harmed as a result of the down-slope
migration of drain water. And the remedy that they sought was to enjoin
the Secretary from delivering water to all lands, up-slope of the lands
in their service area which included large parts of the district. So the
district intervened in that lawsuit as a defendant. And ultimately, those
cases were consolidated for a limited purpose. The Secretary of the
Interior asserted that it was legally impossible to complete the drain.
And we had a trial on that issue, and the district court ruled in favor
of Westlands. And that decision was affirmed by the Ninth Circuit Court
of Appeals in February of 2000. The Secretary--The Ninth Circuit said the
Secretary did have an obligation to provide drainage service under the
San Luis Act. That obligation had not been excused as a result of the
riders that I mentioned earlier and ordered the Secretary to without
delay provide drainage service to Westlands and other areas within the
San Luis Unit.
>> Tom Holyoke: The result of which is what?
>> Tom Birmingham: The result is more, more litigation. You know, this-you know, going back to my comment about Miller versus--you know, of Lux
vs Haggin. These things never, never end. But most recently, we have
entered into a settlement agreement with the United States, signed in
September of 2015 that would resolve this issue once and for all. It
would relieve the government of obligation to provide training and
services to Westlands. Westlands would assume that obligation and we
would receive some benefits for our assumption of that obligation. But
right now, we have a mandatory injunction against the Secretary and the
Secretary has determined that if she were to comply with that mandatory
injunction, it would cause the government in excess of $3.5 billion. And
so the government is eager to find a solution and I'm very hopeful that
Congress will authorize the implementation of the settlement that we
executed with the government in 2015.
>> Tom Holyoke: If Congress does that, does this effectively bring the
drainage issue to a close?
>> Tom Birmingham: I don't know that it brings it to a close. There will
be lots of issues associated with how Westlands will manage drain water
within its boundaries. The settlement provides that we're obligated to
manage drain water within our boundaries in a manner consistent with
state and federal law. I'm sure that as we go forward with an
implementation program, there will be people who will raise questions
about whether our program is consistent with state and federal law. But
it will finally resolve the issue as between Westlands Water District and
the United States.
>> Tom Holyoke: Does it solve your problem in terms of where to put the
drain water?

>> Tom Birmingham: Yes it does, because the settlement requires that we
manage the drain water within our boundaries. So under the settlement, we
will be prohibited from discharging drain water outside of our
boundaries. So ultimately, what we'll have to do is dispose of the drain
water within our boundaries.
>> Tom Holyoke: Have you ever quantified the number of acres taken out of
production just because of the drainage problem?
>> Tom Birmingham: Just because of the drainage problem. Well, it's
difficult for me to answer that question because when the district has
taken land out of production, it's done so for multiple reasons. One is
we have tried to balance the demand for water with the available supply,
and that's one of the reasons we've taken a land out of production. We've
taken--The land that we have taken out of production, we focused on land
that was drainage-impaired with an idea that we'd be able to, to
accomplish multiple purposes through one's expenditure of resources. And
so I would say no land has been taken out of production solely for
reasons of drainage. If we had an adequate supply of water, I don't know
that any of this land would ever have been taken out of production,
because with drainage service, these lands are incredibly productive. You
know, we've talked at length about myths about Westlands Water district.
There is this is myth that I read about how the lands in Westlands are
contaminated with toxic material. The reality is the land in Westlands,
for variety of reasons, is some of the most productive land in the entire
world. And with an adequate water supply and with a means of leaching
salts out of the soil to protect the irrigability of that ground, the
land would be very, very productive.
>> Tom Holyoke: OK then. Well, let's talk a little bit about the future
in terms of water availability. It's April 2016, I've believe you've been
told that you're going to get 5% of your allocation, 5% more than you got
last year. What--At this point, what do you think the future holds for
Westlands Water District?
>> Tom Birmingham: That's a very difficult question. We have to restore
some balance in terms of water supply for human consumption. And again,
this is not just a Westlands Water District issue. This applies to every
water service contractor that gets water from the Bureau of Reclamation
whether it's Del Puerto, Banta Carbona in the extreme north to Santa
Clara Valley Water District that serves as Silicon Valley to Westlands
Water District. The current system is broken. And the fact that in 2016,
a year in which we've had near average precipitation, all of the
reservoirs are full. We've had days, as I said earlier, 70,000 cubic feet
per second, 75,000 cubic feet per second was flowing into the delta. We
can't deliver water in a year like that? The system is really broken. And
so, we have to find some means of restoring our ability to deliver
Central Valley Project water to the west side of San Joaquin Valley. That
may involve Governor Brown's tunnel project or it may involve other
projects. But in addition to that, we have to begin to develop more
regional supplies. We've talked about the drainage issue. One of the
things that we hope to do to manage drainage in Westlands, is to capture
that water treat it, recycle it, and use that water for irrigation. We
are currently in discussions with other areas that have drainage problems

about purchasing from those areas drainage water that can be treated and
used for irrigation. We have looked--We're looking at projects that will
move water from the east side of the valley to the west side of the
valley without having to flow into the delta. And so it's--you know, if
we're going to sustain irrigated agriculture on the west side of San
Joaquin Valley, we have to restore the Central Valley Project supply and
we have to develop local regional supplies.
>> Tom Holyoke: You said earlier that if we don't do some kind of, you
know, infrastructure projects like the tunnels that we would come to
regret it. It seems to me that it's been a while since we've done largescale water infrastructure projects in California. What has happened in-I know at one point in the State's history apparently a great deal of it
got on. What has happened? I mean, how would we--your opinion on how we
changed from a society that was perfectly happy to fun, big dams and
canals, to a society that seems unable or unwilling to do so?
>> Tom Birmingham: I don't think it's a question of an inability, it's an
unwillingness. There's a woman on television, her name is Rachel Maddow.
She's on->> Tom Holyoke: MSNBC?
>> Tom Birmingham: MSNBC. And it's interesting, her father is actually a
water lawyer from Contra Costa County, Robert Maddow, and Robert is just-I mean Bob Maddow is a great guy, just a real gentleman, a real
gentleman. But I remember a number of years ago, when the government was
advocating one of the programs intended to reinvigorate the economy after
the 2008 crisis. And Rachel Maddow appeared on the apron below Hoover Dam
talking about--there was a time when the federal government undertook big
projects, created lots of economic activity and created jobs. And we need
to get back to a time when we--when the federal government can implement
the types of projects like Hoover Dam. And I was thinking, you couldn't
build Hoover Dam today if you wanted to because of all of the
restrictions imposed on any major infrastructure project. And I think it
all boils down to leadership. Leadership is willing to make a difficult
decision, an unpopular decision, but saying this is what we have to do if
we are going to sustain our economy. In 1957, Bulletin 3 was the original
California water plan issued by or developed by the Department of Water
Resources. And in it, it said, people of the city of California--I'm
going to have to paraphrase it. But the people of state of California are
confronted with a critically important question. "Are we going to invest
the money necessary to build the infrastructure to supply water, or are
we going to let the state of California regress? And we're faced with
that same decision today. But today, if you're going to build a new dam,
you got to worry about the public trust doctrine, got to worry about the
Clean Water Act, you got to worry about the Clean Air Act, you have to
worry about global warming, you have to--I mean, the tunnel project, a
classic example. Think about it in terms of common sense, we absolutely
should do it. It helps the fish, it doesn't harm the delta despite what
some people would assert, and it makes a high quality water supply
reliable. So we should do it. But over the course of the last 10 years,
we have spent $260 million doing studies about what are the effects that
building the tunnels will have on the environment? What are the effects

that the tunnels will have on species in the delta like the delta smelt?
Federal biologist can't tell us today what the effects of the Central
Valley Project are on the species today. But yet, we're spending tens of
millions of dollars, hundreds of millions of dollars doing studies to
determine what the effect of this project is going to be on delta smelt
in 20 years when this goes online? So what--for this $260 million, what
do we have? Well, we haven't saved a fish, we haven't produced a single
drop of water, but we have paper that--I don't know how many cubic yards
it would occupy, but it would occupy a small room, literally. And think
about it, $260 million. How many schools could you build with $260
million? How many roads could you improve with $260 million? How many
teachers could you hire with $260 million? We’ve spent $260 million over
10 years doing studies and we're not done yet. So, why can't these
projects be built? Enlarging Shasta reservoir was-- I think it was
originally authorized by Congress--not authorized, excuse me, that's not
accurate. Congress directed, I believe, in 1987 that the Secretary of the
Interior should study raising Shasta reservoir. We're still studying
raising Shasta reservoir. This is 2016. In August of 2000, the CALFED
Record of Decision was released. And they said, "We need to build new
storage in the state of California. We need temperance flat. We need
Sites reservoir. We need to expand Los Vaqueros Reservoir." We actually
have expanded Los Vaqueros Reservoir. It was done at a local level by
Contra Costa Water District. And I applaud them for it. But we're still
studying Temperance Flat, we're still studying Sites. Sixteen years
later, at some point, you have to say, we have as much information as
we're going to have, we need to make a decision and then we need to
implement the decision. So that's a very long winded answer to your->> Tom Holyoke: Yes.
>> Tom Birmingham: --to your question. People are just afraid to make
decisions because the decisions might be wrong. But we have to make
decisions. Leadership means making decisions. And sometimes those
decisions are going to be unpopular.
>> Tom Holyoke: Is it symptomatic of, I guess, the times that in 2000,
Westlands Water District hired a lawyer to be its general manager rather
than an engineer?
>> Tom Birmingham: No, I don't think so. I mean, Westlands' second
general manager, Ralph Brody, was both the general manager and the chief
council of the district. There are lots of water agencies in California
that are managed by lawyers. Metropolitan Water District in Southern
California has been managed by lawyers for a number of years. Zone 7
County Water Agency->> Tom Holyoke: But isn't that the point? I mean, to run a water district
now you seem you're a lot more engaged in litigation than building
something.
>> Tom Birmingham: Well I, I think--I'd like to think that what we're
engaged today more in policy than we are in litigation because litigation
is certainly an important tool but I'm not sure that anything is really
accomplished through litigation that may sounds strange coming from me.

But, you know, the history as I said at the beginning of this discussion,
the history of California is the history of conflict over the use of
water. And so from the beginning days of the state, you know, lawyers
have played a pretty prominent role in the development of water
infrastructure. Earlier we we're talking about, about Adolph Moskovitz
and Stan Kronick. Stan Kronick was a lawyer, if not for his efforts it’s
unlikely that the State Water Project would have been built. He played a
major role in persuading farmers in Kern County that investing in the
State Water Project was going to ultimately be important for them. You
know, it's interesting because we face the same decisions today. They
we're saying, "Yes, but this water is going to cost us $10 an acre foot.
We can't afford that." And that may not be the exact number but there's
example after example of circumstances where people have said, we simply
can't afford to that today. And the decision is made to go ahead and
ultimately it's determined that that was indeed a very wise decision. So,
you know, lawyers are--lawyers have and I think will continue to serve an
important role in the development of water policy and the development of
water supply infrastructure.
>> Tom Holyoke: So water law would be a lucrative career go into for a
young lawyer.
>> Tom Birmingham: I don't about lucrative. No, I will tell you, one of
the things that I've always enjoyed about water law is it presents new
challenges virtually every day, and it's intellectually stimulating. I
know that there are a lot of people who went to law school and went in to
practice law and said, Gosh, I don't know if I could make the make the
decision over I would never go to law school, I just really don't like
being a lawyer." I've never heard a water lawyer say that. I have never
heard a water lawyer say that. Water lawyers love what they do. And part
of the reason is because there are really, really important outcomes. I
sometimes sit in meetings and I look around the room and sometimes it's
frightening. But--And I hope this doesn't--you know emanate from any
sense of hubris but look around the room and think, we're talking about
making important decisions--critically important decisions for the sixth
or seventh largest economy in the world. And virtually, everybody in the
room is either a lawyer or an engineer. Many of them are engineers and
lawyers. And so, if I had the chance to make my decisions earlier—-make
them again, rather than getting a degree in political science I’d get a
degree in engineering, then go to law school and do exactly what I'm
doing today.
>> Tom Holyoke: Any final thoughts that you'd like to share?
>> Tom Birmingham: Well, you know, one of the things that is so
frustrating is that we sit around--we've talked a lot about issues today
that we have been discussing for the last 30 years. I started working for
Westlands when I went to work at Kronick in March of 1986. And so, it
just now has been just over 30 years since I started working for
Westlands Water District in one capacity or another. The issues that we
were talking about in 1986 are precisely the same issues that we're
talking about today. And nothing has been done. You know, we can look at
circumstances or situations where there were some action but it didn't
contribute to any solution. And that's true whether you're looking at it

from the perspective of water supply or the environment. We talked about
the biological opinions today and sometimes I'm just--I'm shocked that my
colleagues in the environmental community will applaud when the Ninth
Circuit Court of Appeals upholds the decision of the Fish and Wildlife
Service to adopt this biological opinion. Because we knew at that time
that the biological opinion wasn't going to help the delta smelt, and the
environmental community should have known that. Today, the delta smelt is
worse off than it has ever been, despite the fact that we have dedicated
millions of acre-feet of water and hundreds of millions of dollars to its
protection. It's worse off today than it was 30 years ago. But we're
still talking about the same issues as it relates to the delta smelt.
Same thing is true with respect to salmon or water quality or isolated
conveyance facilities in the delta, storage. We're talking today about
the same issues that we are discussing 30 years ago. And one of the
things that is particularly frustrating and I hate to end this discussion
on this note, is that we have been simply been (un)able or unwilling to
make important decisions regarding any of those issues.
>> Tom Holyoke: That sounds like an epitaph.
>> Tom Birmingham: Well, you know, you can't work for farmers without
being an optimist, because farmers are the eternal optimist. So, I hope
it's not an epitaph, but we have to make important decisions. If we want
to sustain irrigated agriculture in the State of California, we have to
make decisions that will promote that as opposed to allowing decisions to
be implemented without any analysis of the potential consequences on
irrigated agriculture. Let me cite just an example, if I may. Right now,
the Bureau of Reclamation is involved in developing an environmental
impact statement concerning a decision to release more water from the
Trinity River or from the Trinity River Division into the Trinity River,
and we’ve commented on that document. And we said, if you make this
decision is going to--is going to result in reduced water supply for
farmers in the Central Valley Project. And the Bureau of Reclamation
said, you know, "That's correct," in response to our comment. But
whatever losses are sustained as a result of this position can simply be
made up by the farmers by pumping more groundwater. And it's just--it's
like how can--how in the context of 2016, when we are seeing virtually
every water basin in the state of California being a severely overdrafted could the Bureau of Reclamation with a straight face make that
comment or issue that response to a comment? Well, just pump more
groundwater. There was an author, Marc Reisner, who was historically very
critical of the Central Valley Project and Westlands Water District. His
views changed over the years. And shortly before he died, he wrote a book
concerning his--or I'm sorry, not a book, a paper on his evolving views
of agriculture in the San Joaquin Valley and in the Sacramento Valley.
And one of the comments he made at the time was that, you know, in the
'30s and '40s, we made decisions about diverting water away from the
environment without concern for the consequences that those decisions
were going to have on the environment. Well today, the same is true.
We're making decisions about taking water away from farmers without
regards to how those decisions are going to affect irrigated agriculture.
And as I said a few moments ago, if we're going to preserve irrigated
agriculture, we've got to start making decisions that will promote it as

opposed to simply allowing decisions to be implemented that cut by cut
are going to be the death of irrigated agriculture.
>> Tom Holyoke: OK, thank you.
>> Tom Birmingham: You're welcome. Thank you.

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