Congressman Tom McClintock

Representing the 4th District of California

Natural Resources Committee Markup - Subpoena Powers, Central Valley Groundwater Overdrafts, Water Rights Settlements and Parallel Water Programs

February 12, 2020
Statements by Congressman McClintock at the Natural Resources Commitee Markup Hearing, February 12, 2020
Remarks Regarding the Motion to Grant Chairman Plenary Subpoena Power
Congressman Tom McClintock
House Natural Resources Committee
February 12, 2020
There is but one rule that benefits the majority – and that is that the majority rules.  All other rules are for the benefit of the minority, to assure that it has a say in the deliberations and an opportunity to be consulted and to offer modifications to the majority’s proposals – all of which the majority is free to take or reject as it sees fit.
The Natural Resources Committee, more than most other committees of the House, has a tradition of bi-partisanship when it comes to the matters within its jurisdiction.  One of those traditions is that when it issues subpoenas, it does so by majority vote of the committee.  This allows the minority to offer advice, ask questions, and make suggestions – a process that can often produce a bi-partisan vote that adds moral authority to the legal authority of the subpoena.  
As I said at a previous hearing, there is a natural tension between the executive and legislative branches established by our Constitution.  The executive cannot interfere with the legislative branch any more than the legislative branch can interfere with the executive.  But the legislative branch has a legitimate role to provide oversight – that is, to ask questions – even embarrassing questions – as to how the executive is discharging the laws that Congress has made.  It is often in the executive’s best interest to cooperate with legitimate requests to foster the goodwill that makes policy-making by co-equal branches easier, better informed, and more open.
The frustrations that the Democrats are expressing over a lack of cooperation by the Trump Administration is no different than the frustrations we Republicans had with the Obama Administration, so there is a certain degree of sympathy with which many of us view the concerns that have been expressed.  
As I look at the long list of requests for documents made by the Democrats,  many appear to be fishing expeditions designed not to provide oversight, but to tie up the departments in a manner that obstructs their work.  Some are legitimate and reasonable.
So why not put the issuance of subpoenas to a vote, as this committee has always done, expect during recesses?  That is not going to alter in any way the majority’s power to issue subpoenas – after all, majority rules.  But it will allow the minority to provide input and perhaps even lend bi-partisan support to these subpoenas.
The rules of this committee assure that when a subpoena is issued, it is being issued not on the whim of the chairman but after deliberation by the whole committee.  That, too, assures that a subpoena from this committee is a serious product issued after debate and vote.
This proposal bypasses the deliberative process that backs subpoenas with the moral authority of the whole committee and instead replaces it with the whim of the Chairman.  The practical effect will be to allow subpoenas to be issued like popcorn in the most partisan of circumstances, which will likely stiffen legal resistance to them by the administration and cheapen their authority.
But what I most ask the majority to consider is what I said when I began.  Rules protect the minority’s right to be consulted.  The majority has the power to change these rules to eliminate the minority’s ability to consult – that’s true.  But I would warn my friends that rules aren’t the only thing that changes.  Majorities change too.  These days, they change quite often. 
If you change these rules, that change is going to stay in the rules.  A year from now, you may face a Republican chairman using this new authority to issue subpoenas without consulting YOU.   And you may find subpoenas being issued to every left-wing NGO, every green-energy crony-capitalist, and every ideological zealot in the bureaucracy – with no opportunity for YOU to question or protest.
I can’t say I find that prospect all-together unappealing.  But before voting, you might want to consider Clint Eastwood’s famous question, “Do you feel lucky?” 

In Opposition to HR 5316 TJ Cox
House Natural Resources Committee
February 12, 2020

For many years, the Central Valley suffered from groundwater overdrafts.  In response --- using the beneficiary pays principle --- the federal government fronted the money for the Central Valley Project to use surplus water in wet years to recharge the aquifers.  The users of the water have since entirely paid off the project.  And it worked – until so-called environmental laws in the 1970s set in motion severe restrictions in the ability of the project to deliver water.

The result: groundwater overdrafts returned and have now created significant subsidence, which in turn has further reduced the ability of the project to deliver water for replenishment.  The aqueducts are largely gravity fed, which means that just a little subsidence can dramatically reduce water flow.

The WIIN Act, passed with a bipartisan majority in both houses and signed by President Obama in 2016, addressed the need to re-engineer the aqueducts, for which $2.3 million has already been appropriated.  Meanwhile, President Trump has brought some sanity to the abuse of biological opinions that caused the damage in the first place, as well as ordering critical updates to ESA, NEPA and WOTUS.  

But the WIIN Act will soon expire and we are beginning to despair the majority has any intention to reauthorize it so the work can continue. Instead, they have chosen proposals such as H.R. 5316 which does nothing but throw taxpayer money at a problem with no intentions of addressing the root issues. 

There are two ways to restore the capacity of the Friant-Kern Canal: One is to earmark money for the repairs paid by taxpayers who get no benefit from the project.  The other is to reauthorize the WIIN Act so the engineering work already underway can be completed and then proceed under the beneficiary pays principle, assuring the project is ultimately paid by the users of the water.  

I am also deeply concerned with provisions in HR 5316 that would earmark $200 million for the San Joaquin River Settlement Fund.  This does nothing to deliver more water for the San Joaquin Valley – it is rather an environmental slush fund that works against water delivery for the valley.  Kole Upton, a long-time San Joaquin Valley farmer described the settlement this way: 

“The environmentalists got what they had demanded in court, a fishery that costs the most money and requires the most water. The option of a lesser fishery having less effect on the Friant service area was rejected. However, as part of the settlement, environmentalists promised to help mitigate the water losses to the area.  
“Instead, they have filed lawsuit after lawsuit over delta issues that have had the effect of seriously compromising any program to get our water back…the result will be the ultimate loss of 200,000 to 300,000 acres of fertile farmland, plus the expected detrimental effect on the communities in the Friant service area. We will see the same effect visited on our area as happened on the westside of the valley following the passage of the Central Valley Project Improvement Act in 1992.”  

We don’t need to throw another $200 million at this fiasco.

With this provision, $200 million goes to canal repairs to improve river flow and $200 million goes to assuring the least amount of that water reaches farmers.  That’s called “bait and switch.” 

Here’s what I suggest instead: reauthorize the WIIN Act that is already funding the engineering study for the canal before it expires next year.  

Opposition to HR 1904 (Grijalva)
House Natural Resources Committee
February 12, 2020

Negotiating and litigating over water rights is a uniquely executive function, but approving a settlement is a legislative one.  An Indian Water Settlement occurs when an Indian nation sues the federal government under the Winters Doctrine, and claims that it is entitled under law to certain apportionments of water.  It is the responsibility of the Attorney General to assess the legitimacy of the claim based on the facts and the law.  If he is convinced that the government’s case is weak and the Indian Tribe’s is strong, it is his responsibility to negotiate with the tribe the best deal he can get for the government, and compare that deal with the costs of litigation and the likely outcome of that litigation.

Once that negotiation is concluded and both sides have agreed to it in their mutual best interest – then and only then is it brought to the legislative branch for ratification and an appropriation is made to settle and close the case

That’s the way it is supposed to work.  That’s the way it once worked.  But over the last two decades, this process has been usurped by Congress.  Congress began proposing, negotiating and agreeing to settlements with (shall we say?) politically friendly tribes, even when our lawyers and their agencies believed the government was in the right and would prevail in court.  This did a tremendous disservice to taxpayers by giving away the store to litigants filing meritless lawsuits who happened to have doting friends in Congress.

To combat this practice, under Republican leadership, the Natural Resources Committee implemented a policy to assure that settlements were only considered once our lawyers and the affected agencies agreed that the lawsuit had merit and ought to be settled outside of court to save taxpayers the potential of still higher costs if the matter went to court.  At the outset of this Congress, I offered an amendment to codify this policy in the rules, which had been successfully applied to approve settlements over the last few years.

Specifically, it provided that before an Indian Water Rights Settlement is considered or recommended by the Natural Resources Committee that the Departments of Interior and Justice and the plaintiffs all agree to the settlement and that the departments certify that it doesn’t duplicate claims previously paid, that it doesn’t pay meritless claims, and that it is in the best interests of the taxpayers to approve the settlement rather than to go to court.

The amendment was rejected, opening the floodgates to politically-driven settlement claims being paid regardless of their actual merit and in a manner that often leaves us open to still further claims. 

H.R. 1904 greases the skids on this practice by permanently extending the Reclamation Water Settlements Fund as a perpetual slush fund, bypassing the appropriations authority of Congress.  This fund was first created by the Democrats in 2009 using a budget gimmick to avoid any costs under the analysis of the Congressional Budget Office (CBO). Now, Democrats are looking to capitalize on the same budget gimmick to permanently extend this fund. 

In 2009, when this fund was authorized, the Democratic-led House approved several water rights settlements that even the Obama Administration expressed concerns over authorizing. The White Mountain Apache settlement had to be fixed several times, most recently in the FY20 appropriations package. The Aamodt settlement is now demanding more money. 

For example, earlier this Congress, a Senate bill increased money for an already settled claim that, according to the CBO, will require $157 million more to be spent from this fund – without further congressional appropriation – over the next 10 years.

This never-ending fund sets a perverse incentive in which Congress doesn’t have to ensure the settlements it approves actually settle claims or protect the American taxpayer. For these reasons I urge my colleagues to oppose this bill.

Remarks in Opposition to HR 5347 (Cox)
House Natural Resources Committee
February 12, 2020

H.R. 5347 is one of a spate of bills coming out of the water sub-committee that triumphantly enact shiny, new programs to accomplish…what is already being accomplished by existing programs.  In this case, it creates a new, expensive nation-wide grant program under the Department of the Interior for disadvantaged communities that have experienced a significant decline in quantity or quality of drinking water.

We already have that program – it’s called “the Assistance for Small and Disadvantaged Communities Drinking Water Grant Program,” established by the Safe Drinking Water Act and administered by the Environmental Protection Agency.  According to the EPA, this program is to – quote – “award grants to states to assist underserved, small and disadvantaged communities that are unable to finance activities needed to provide safe drinking water.  To assist small and disadvantaged communities with improving their drinking water resources, this program will include approximately $42.8 million in funding. Grants will be awarded as non‐competitive grants to states, with a 2 percent tribal allotment of $875K. The grant program is designed to help public water systems in underserved communities meet and comply with SDWA requirements. The grant program will provide assistance to underserved communities that have no household drinking water or wastewater services or are served by a public water system that violates or exceeds any Maximum Containment Level, treatment technique, or action level.”

So what is the point of this bill, except a self-congratulatory press release?

The EPA is the agency directly responsible for safe drinking water, it is the agency that sets the standards and enforces safe drinking laws and is best positioned to determine community needs to implement this objective – which is why Congress placed this program under its auspices.  This bill sets up a parallel program under the Department of Interior for exactly the same purpose.  

If the existing program is not working, we should either change it or scrap it – but not simply pile one bureaucracy on top of another.