Regional Oral History Office University of California
The Bancroft Library Berkeley, California
California Water Resources Oral History Series
Thomas J. Graff and
David R. Yardas
THE PASSAGE OF THE CENTRAL VALLEY PROJECT IMPROVEMENT ACT, 1991-1992:
ENVIRONMENTAL DEFENSE FUND PERSPECTIVE
Interviews Conducted by
Malca Chall
in 1994
Copyright 1996 by The Regents of the University of California
Since 1954 the Regional Oral History Office has been interviewing leading
participants in or well-placed witnesses to major events in the development of
Northern California, the West, and the Nation. Oral history is a modern research
technique involving an interviewee and an informed interviewer in spontaneous
conversation. The taped record is transcribed, lightly edited for continuity and
clarity, and reviewed by the interviewee. The resulting manuscript is typed in
final form, indexed, bound with photographs and illustrative materials, and
placed in The Bancroft Library at the University of California, Berkeley, and
other research collections for scholarly use. Because it is primary material,
oral history is not intended to present the final, verified, or complete
narrative of events. It is a spoken account, offered by the interviewee in
response to questioning, and as such it is reflective, partisan, deeply involved,
and irreplaceable.
************************************
All uses of this manuscript are covered by a legal agreement
between The Regents of the University of California and both Thomas
J. Graff and David R. Yardas dated, respectively, November 28, 1994
and January 9, 1995. The manuscript is thereby made available for
research purposes. All literary rights in the manuscript, including
the right to publish, are reserved to The Bancroft Library of the
University of California, Berkeley. No part of the manuscript may
be quoted for publication without the written permission of the
Director of The Bancroft Library of the University of California,
Berkeley.
Requests for permission to quote for publication should be
addressed to the Regional Oral History Office, 486 Library,
University of California, Berkeley 94720, and should include
identification of the specific passages to be quoted, anticipated
use of the passages, and identification of the user. The legal
agreements with Thomas J. Graff and David R. Yardas require that
they be notified of the request and allowed thirty days in which to
respond.
It is recommended that this oral history be cited as follows:
Thomas J. Graff and David R. Yardas, "The
Passage of the Central Valley Project
Improvement Act, 1991-1992: Environmental
Defense Fund Perspective," an oral history
conducted in 1994 by Malca Chall, Regional
Oral History Office, The Bancroft Library,
University of California, Berkeley, 1996.
Copy no.
Thomas Graff, ca. 1991
David Yardas, 1994
Cataloging information
GRAFF, Thomas (b. 1944) Environmental Defense Fund Attorney
YARDAS, David (b. 1956) Water resources analyst
Passage of the Central Valley Project Improvement Act. 1991-1992;
Environmental Defense Fund Perspective, 1996, iv, 133 pp.
Joint interview discusses Environmental Defense Fund, national and
regional; research and policy related to California water issues: Auburn
and New Melones dams, peripheral canal, Metropolitan Water District-
Imperial Valley Irrigation District, Mono Lake, water transfers, water
marketing; relationship of Truckee-Carson-Pyramid Lake Water Rights
Settlement Act to CVPIA; role of EOF, National Resources Defense Council,
Share the Water, business interests in passage of CVPIA; writing and
revising Miller-Bradley and Seymour bills; pressure from farmers,
environmentalists, business leaders; use of media.
Interviewed in 1994 by Malca Chall for the California Water Resources Oral
History Series. Regional Oral History Office, The Bancroft Library,
University of California, Berkeley.
TABLE OF CONTENTS --Thomas J. Graff and David R. Yardas
PREFACE i
INTERVIEW HISTORY iv
BIOGRAPHICAL INFORMATION viii
I OVERVIEW OF THE BEGINNING EFFORTS TO DRAFT THE CENTRAL VALLEY
PROJECT IMPROVEMENT ACT: THE INVOLVEMENT OF THOMAS GRAFF,
DAVID YARDAS, AND THE ENVIRONMENTAL DEFENSE FUND 1
Thomas Graff: Personal Background and Career Path with the
Environmental Defense Fund 1
Education and First Professional Positions 2
The Founders of EOF 3
The Early Years of EOF in the San Francisco Bay Area:
Water-Related Cases 5
The Split in the Environmental Community Over the
Peripheral Canal, 1976-1982 8
The Evolving EOF Advocacy Policy: Innovative Directions
of the Staff 10
The Metropolitan Water District and the EOF Concept for
the Imperial Valley 12
Working with the State Legislature on Water Legislation 13
Contacts with the Agriculture /Water Community 15
Drafting the Coordinated Operation Agreement Legislation,
1986 17
Background on the Miller-Bradley Bill 20
Senator Bill Bradley 's Interest in California Water
Issues, 1989 20
Congressman George Miller's Fish and Wildlife Bills, 1989, 1990,
1991 23
The Natural Resources Defense Council and California
Water Issues 24
The NRDC and EOF Join Forces on Fish and Wildlife
Protection, Water Transfers, and Contract Renewals 25
The Contract Renewal Issue: Congressman Miller's Dilemma
re Transfers 27
Senator Bradley Takes the Lead on the CVPIA, 1991-1992 28
David Yardas: Personal Background and Career Path with the
Environmental Defense Fund 30
The Pyramid Lake Project: Its Relevance to the CVPIA
Legislation 33
Agriculture, Wetlands, Indian Tribal Fisheries 36
Becoming Involved in California Water Issues: Drafting
the Yardas-Garrison Letter 38
Genesis of the Three-Way Water Agreement Process 39
Leave of Absence, January to October, 1991 40
II MOVING THE CENTRAL VALLEY PROJECT IMPROVEMENT ACT THROUGH THE
SENATE, 1990-1992 43
Thomas Graff's Offer of Advice on Reform Legislation Coupling
Water Marketing and Environmental Protection 43
George Miller Holds Back Final Passage of the Omnibus Water Bill 45
Senator Bradley Plans to Include the CVPIA in Final Passage of
the Omnibus Water Bill 46
Additional Background on the Yardas-Garrison Letter 47
George Miller's Response to Water Marketing 49
Share the Water: The Coalition in Support of the CVPIA 53
Thomas Graff 55
David Yardas 55
The Roles of the Urban Water Agencies and the Business Community 56
Tracking the Drafting of Senator Seymour's Bill, S. 2016, 1991 57
Senator Bradley 's Staff Revises S. 484 58
Senator Seymour Introduces S. 2016 59
Analyzing the Revisions of S. 484 Unacceptable to Agriculture 60
Water Reallocation Provisions and Transfers in S. 2016 62
The Metropolitan Water District and Its Shifting Position on
the Reform Legislation 65
Senator Bennett Johnston: The Chairman's Mark 66
Various Reasons for the Mark and Its Provisions on Water 70
The Senate Energy and Natural Resources Committee Passes the
Seymour Bill 73
The Senate Passes the Seymour Bill: Title 34 of H.R. 429 76
III NEGOTIATIONS AND FINAL PASSAGE OF THE CENTRAL VALLEY PROJECT
IMPROVMENT ACT: THE OMNIBUS WATER BILL 78
The Debate Moves to the House 78
Drafting H.R. 5099: The Central Valley Project Improvement Act 78
George Miller Strikes a Deal with Valley Democrats 79
The Restoration Trust, the Restoration Fund, and the Advisory
Committee 80
The Environmental Community Criticizes Congressman Fazio 82
Opposition to Auburn Dam Joined to CVPIA Debate 83
Pondering Senator Seymour's Reluctance to Negotiate 84
The Somach-Graff Negotiations 85
Compromise Positions on Each Side 88
Factoring in the Urban Interests: The Metropolitan Water
District 88
Releasing the Draft: The Aftermath 90
Analyzing Some Specific Provisions in the Draft 92
H.R. 5099 Passes the House by Voice Vote 95
The Tiered Pricing Amendment 96
Further Negotiations on the Somach-Graff Draft 97
The Influence of the Media 100
The Conference Committees: Negotiations Involved in Drafting
Title 34 102
The Final Hours Preparing the Bill 106
The Votes in the House and Senate 109
President Bush Signs H.R. 429, the Reclamation Projects
Authorization Act of 1992: The Omnibus Water Bill 110
Analyzing the Viewpoints of the Agricultural Community Toward
the Environmental Community 112
An Optimistic View of the Future of the CVPIA 114
TAPE GUIDE 116
APPENDICES
A. Yardas-Garrison letter re. H.R. 3613, Sept. 6, 1990 117
B. Tom Graff memo to Dan Beard and John Lawrence re. CVP:
water policy reform, Feb. 10, 1992 123
C. President George Bush statement re. signing H.R. 429, the
Omnibus Water Bill, Oct. 30, 1992 128
INDEX 134
PREFACE
The Water Resources Center of the University of California, in 1965,
established a History of California Water Resources Development Oral
History Series, to be carried out by the oral history offices at the Los
Angeles and Berkeley campuses. The basic purpose of the program was "to
document historical developments in California's water resources by means
of tape recorded interviews with men who have played a prominent role in
this field." The concern of those who drafted the program was that while
the published material on California water resources described
engineering and economic aspects of specific water projects, little dealt
with concepts, evolution of plans, and relationships between and among
the various interested federal, state, and local agencies.
To bridge this information gap, the Water Resources Center, during
the past quarter century under the successive direction of Professors
Arthur F. Pillsbury, J. Herbert Snyder, and Henry Vaux, Jr., has provided
funding in full or in part for interviews with men who have been
observers and participants in significant aspects of water resources
development. Early advisors to the project on the Berkeley campus were
Professors J. W. Johnson and David K. Todd. Gerald Giefer, librarian of
the Water Resources Center Archives, Berkeley, has maintained an
important advisory role in the project.
Interviewees in the Berkeley series have been pioneers in western
water irrigation, in the planning and development of the Central Valley
and California State Water Projects, in the administration of the
Department of Water Resources, and in the pioneering work of the field of
sanitary engineering. Some have been active in the formation of the San
Francisco Bay Conservation and Development Commission; others have
developed seminal theories on soil erosion and soil science. But in all
cases, these men have been deeply concerned with water resources in
California.
Their oral histories provide unique background into the history of
water resources development and are valuable assets to students
interested in understanding the past and in developing theories for
future use of this essential, controversial, and threatened commodity-
water.
Henry J. Vaux, Jr., Director
Water Resources Center
January 1989
University of California, Riverside
ii
SERIES LIST
April 1996
The following Regional Oral History Office interviews of have been funded in
whole or in part by The Water Resources Center, University of California.
Banks, Harvey (b. 1910)
California Water Project. 1955-1961. 1967 82 pp.
Gianelli, William R. (b. 1919)
The California State Department of Water Resources. 1967-1973.
1985, 86 pp.
Gillespie, Chester G. (1884-1971)
Origins and Early Years of the Bureau of Sanitary Engineering.
1971, 39 pp.
Graff, Thomas J.(b. 1944) and David R. Yardas (b. 1956)
The Passage of the Central Valley Project Improvement Act. 1991-1992;
Environmental Defense Fund Perspective. 1996, 136 pp.
Harding, Sidney T. (1883-1969)
A Life in Western Water Development. 1967, 524 pp.
Jenny, Hans (1899-1992)
Soil Scientist, Teacher, and Scholar. 1989, 364 pp.
Langelier, Wilfred F. (1886-1981)
Teaching, Research, and Consultation in Water Purification and Sewage
Treatment. University of California at Berkeley. 1916-1955.
1982, 81 pp.
Leedom, Sam R. (1896-1971)
California Water Development, 1930-1955. 1967, 83 pp.
Leopold, Luna B. (b. 1915)
Hydrology, Geomorphology, and Environmental Policy; U.S. Geological Survey,
1950-1072. and UC Berkeley. 1972-1987. 1993, 309 pp.
Lowdermilk, Walter Clay (1888-1974)
Soil, Forest, and Water Conservation and Reclamation in China, Israel.
Africa, and The United States. 1969, 704 pp. (Two volumes)
McGaughey, Percy H. (1904-1975)
The Sanitary Engineering Research Laboratory: Administration, Research,
and Consultation. 1950-1972. 1974, 259 pp.
ill
Nelson, Barry (b. 1959)
The Passage of the Central Valley Project Improvement Act, 1991-1992;
Executive Director. Save San Francisco Bay Assocation. 1994, 88 pp.
Peltier, Jason (b. 1955)
The Passage of the Central Valley Project Improvement Act, 1991-1992;
Manager. Central Valley Project Water Association. 1994, 84 pp.
Robie, Ronald B. (b. 1937)
The California State Department of Water Resources. 1975-1983.
1989, 97 pp.
The San Francisco Bay Conservation and Development Commission. 1964-1973.
Interviews with Joseph E. Bodovitz, Melvin Lane, and E. Clement Shute.
1986, 98 pp.
For other California water-related interviews see California Water Resources
list.
iv
INTERVIEW HISTORY- -by Malca Chall
Momentous shifts in social policy often seem to arrive on the scene
without a history. On close inspection, one finds that people have
worked, perhaps for decades, on a concept that now works its way into our
consciousness. So it was with the Central Valley Project Improvement Act
(CVPIA) , that significant transition in California water policy history
which was signed into law by President George Bush in 1992. In 1993, the
Regional Oral History Office initiated an oral history series, the
Passage of the Central Valley Project Improvement Act, 1990-1992, to
document this important legislation. The series began with interviews
with Jason Peltier and Barry Nelson, and now moves on to Thomas Graff and
David Yardas. 1
In this oral history, Thomas Graff and David Yardas, key players in
the legislative process leading to passage of the CVPIA, bring to life
the exciting behind-the-scenes activities and personalities involved with
the pros and cons of the legislation, including some of the intellectual
and political background which shaped the final Omnibus Water Act.
Thomas Graff, a senior attorney with the Environmental Defense Fund
(EOF) in Oakland, California, was hired by the fledgling national EOF
board in 1971 to help organize the northern California office. Early
concerns dealt with pesticides, but eventually Mr. Graff focused on such
environmentally and politically sensitive issues as the Auburn and New
Melones dams, the San Francisco Bay/Delta Estuary, the Peripheral Canal,
Mono Lake, and the Imperial Irrigation District.
From as early as 1981, Tom Graff, along with others on the EOF
staff, began studying, writing, and speaking on the possibilities of
using market forces to accomplish environmental goals. Or, as he
headlined an op-ed piece in the Los Angeles Times, "Water is a Commodity,
So Let's Treat it as One." 2 Scores of articles and the testing of this
theory in the Imperial Valley and Mono Lake set the tone for the debates
during the following decade.
David Yardas began his career with EOF in 1986 working on the Rural
Economy and Environment Program (REEF), a new Ford Foundation Program.
This led him to the Pyramid Lake, Nevada, (water/land) controversy, a
case possibly falling under the REEP initiative. The result was the 1990
Truckee-Carson-Pyramid Lake Water Rights Settlement Act. This involved
water transfers, a water rights acquisition program, and associated
J The series will continue with Daniel Beard and Richard Golb interviews,
2 Zach Willey and Thomas Graff, Los Angeles Times. February 5, 1984.
revisions in the Newlands Projectthe oldest federal reclamation project
in the West. Mr. Yardas explains that some of the ideas for the complex
Pyramid Lake decision were an outgrowth of the Metropolitan Water
District-Imperial Irrigation District approach- -"the idea that the urban
sector could come in and invest in conservation in an agriculture project
and reap the benefits of conserved water." This concept had been worked
out during the 1980s by Tom Graff and Zach Willey, his EOF colleague.
During David Yardas ' s Nevada period, he met Senator Bill Bradley
(chair of the Subcommittee on Water and Power of the Senate Committee on
Energy and Natural Resources) and Tom Jensen, his chief aide for water
policy, when they became interested in the Pyramid Lake reclamation
project. Consequently, Jensen and Yardas developed a strong and trusting
relationship which proved highly valuable when Senator Bradley and Jensen
turned their attention to the Central Valley Project.
By mid- 1991 various sectors involved with CVP reform were in place.
Senator Bradley had focused on California water policy and reform of the
Central Valley Project, and had introduced a bill entitled the "Central
Valley Project Improvement Act." Congressman George Miller, now chair of
the House Committee on Natural Resources, had proposed another of his
many bills to restore fish and wildlife to the Upper Sacramento River and
revise time limits for renewing CVP contracts. The environmental
community, joined by some major business interests, had organized for
action in favor of the legislation redefining the mission of the CVP
which required agriculture to share water with fish and wildlife and the
urban needs of California's growing cities and towns. Finally, Graff and
Yardas were proposing water marketing as an impetus to conservation and
reform.
At the same time, the Central Valley Project Water Association
contractors and others in the agriculture /water community were writing
their own bills to deal with the problems of the Central Valley Project.
Strongly opposed to Miller's and Bradley 's ideas, they tapped Senator
John Seymour to carry their legislation. Mr. Seymour had been appointed
to fill the term of Senator Pete Wilson following his election as
governor of California.
Add to this mix the Omnibus Water Act, loaded with some thirty
special water-related projects intensely sought by congressmen in twelve
other western states. George Miller had held back this act for a number
of years until it included a section on Central Valley Project reform.
The scene was now set for a major water reform struggle in and outside of
Congress .
This oral history takes us step by step through the two-year effort
to reform and restructure the Central Valley Project. We follow in close
detail the rationale behind revisions in the Miller-Bradley bills, the
innumerable hearings in California and Washington, D.C., and the attempts
to meet with Senator Seymour and CVP contractors to work out a
compromise. We learn of the efforts to influence the media, of the
emotional lows and highs as the Central Valley Project Improvement Act
vi
legislation moved through the committees and on to the floors of the
House and Senate. When a reluctant President Bush signed the Omnibus
Water Act which included the CVPIA, the environmental community could
savor victory.
To prepare for this interview, I met with Mr. Graff on September 13,
1994 to consider what key aspects of this history he wished to cover in
two recorded interview sessions. The story of the CVPIA, he claimed,
would be incomplete without the details and amplification provided by his
colleague David Yardas who had had an important role in negotiating and
writing key aspects of the legislation.
A joint interview, although unusual, had worked well for the oral
history with three founders of the Save San Francisco Bay Association, so
it was agreed that David Yardas would join the sessions with Tom Graff.
At this and subsequent meetings, Tom Graff gave me copies of memos,
testimonials prepared for committee hearings, letters, drafts of bills,
and newspaper and journal articles dealing with the history of the CVPIA
and water marketing.
The interviews took place in the spacious conference room at EOF
headquarters in Oakland, for two hours on October 10 and three hours on
November 16, 1994. Both men were careful to present the facts as
accurately as possible and the recollections of their own emotions and
attitudes during these eventful two years. They bantered and bounced
details, anecdotes, and questions off of each other. Mr. Graff brought
in old calendars to help ensure accuracy of dates, places, and people.
He also made notes of topics he wanted to discuss. David Yardas brought
in binders in which he had organized chronologically the many drafts of
the Miller-Bradley bills and other pertinent legislation. Their
friendship and mutual respect were apparent throughout this interview.
The collaboration continued as each read and checked for accuracy
the lightly edited transcript. They answered questions and added
information I thought useful.
Copies of some of Graff's material have been placed where relevant
with the interview; others are in the appendices. The entire document
collection will be deposited in the Water Resources Center Library on the
Berkeley campus. It supplies a rich resource for those studying the
background of the CVPIA as well as the EDF's successful ventures in Mono
Lake and the Imperial Irrigation District.
Mr. Graff seemed cautiously optimistic about the future of the CVPIA
now that the Republicans are the majority party in the Congress and both
Bill Bradley and George Miller have lost their influential committee
posts. Some of the changes, he claimed, were structural, not mere
products of personalities. Public attitudes about the environment had
been important to the passage of the CVPIA and environmental legislation
during the past decades. "Now," he said, "public attitudes could shift
back. And maybe they have. Maybe property rights in some sense are more
vii
important than endangered species in many people's view. One thing I've
always wondered about: whose property is water? That's a very
complicated concept. The answer to that is very complicated. But we'll
need to wait for another interview someday to get into that whole area."
Funding for these interviews came from the Center for Water and
Wildland Resources of the University of California at Davis. Professor
Don Erman, the Center's director, understood the importance of
documenting the history of the landmark Central Valley Project
Improvement Act.
The Regional Oral History Office was established in 1954 to augment
through tape-recorded memoirs the Library's materials on the history of
California and the West. Copies of all interviews are available for
research use in The Bancroft Library and in the UCLA Department of
Special Collections. The office is under the direction of Willa K. Baum,
and is an administrative division of The Bancroft Library of the
University of California, Berkeley.
Malca Chall
Interviewer /Editor
December 1995
Regional Oral History Office
The Bancroft Library
University of California, Berkeley
viii
Regional Oral History Office
Room 486 The Bancroft Library
University of California
Berkeley, California 94720
BIOGRAPHICAL INFORMATION
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I OVERVIEW OF THE BEGINNING EFFORTS TO DRAFT THE CENTRAL VALLEY
PROJECT IMPROVEMENT ACT: THE INVOLVEMENT OF THOMAS GRAFF,
DAVID YARDAS, AND THE ENVIRONMENTAL DEFENSE FUND
[Interview 1: October 10, 1994] ##'
Thomas Graff; Personal Background and Career Path with the
Environmental Defense Fund
Chall: What I wanted to learn from you first is the route by which you
arrived where you are now. As I understand it, you're counsel
with the EDF [Environmental Defense Fund] . What is your exact
title?
Graff: Well, it's fluctuated over the years, but the current title that I
use is senior attorney. From time to time I've used regional
counsel, spelled s-e-1. Those are pretty much the two.
Occasionally, I'm referred to as the director of this office, but
that's technically not accurate, even though I'm the senior person
here and have sometimes served in a qua si -management function.
Chall: Senior person meaning you have--
Graff: I have been here the longest.
Chall: How long has that been?
Graff: 1971. Two colleagues and I started the California office of EDF
in the summer of "71.
Chall: As an attorney with the fund?
Graff: Well, it was quite a young organization. EDF was formed in 1967
on Long Island in New York, and three years later opened a D.C.
office, and only a year after that opened the California office.
'//# This symbol indicates a tape or tape segment has begun or ended.
A guide to the tapes follows the transcript.
They did a sort of unusual thing of interviewing for three
professional positions separately, and hired each of the three
people with whom they staffed the office separately. The three of
us thrown together became essentially partners in creating an EDF
West Coast presence.
Education and First Professional Positions
Chall: What background do you have, and where did you come from to get
here?
Graff: Well, I don't know exactly what of the background you want to know
about, but in terms of schooling--
Chall: Yes.
Graff: I graduated from Harvard College in 1964, and from Harvard Law
School in 1967. I majored in American history as an
undergraduate. My degrees in both cases were magna cum laude, and
in the case of the law school, I was an officer, the treasurer, of
the Harvard Law Review.
After law school, I was awarded a fellowship called the Frank
Knox fellowship awarded by Harvard University and spent a year
acquiring a master of laws at the University of London, London
School of Economics. It was mostly a fun year rather than a
particularly rigorous academic year.
The year following that, 1968-69, I served as a clerk to
Judge Carl McGowan of the United States Court of Appeals for the
D.C. circuit. It was a wonderful experience. He was a terrific
guy who was a great judge and also had an interesting political
history. He had been administrative assistant to Governor [Adlai]
Stevenson of Illinois and had a lot of interesting stories to tell
about Illinois politics over the years. He'd also been campaign
manager for Stevenson in his unsuccessful first presidential run.
He also had been a professor of law at Northwestern and a
practicing lawyer prior to being appointed by President [John F.]
Kennedy to the court of appeals .
Then in 1969-70, I served as a lobbyist for the city of New
York on the staff of then-mayor John Lindsay in D.C. During all
that time, the Vietnam conflict was underway, and I was in various
stages of potentially going to be drafted by my local draft board,
but it never happened. By the time I was halfway through my year
of lobbying for the city, I turned twenty-six, and that was also
the year of the first lottery, and I got a good number, a non-
draf table number.
So at that point, my then-wife and I decided to abandon the
East Coast. [Richard M. ] Nixon by then was president, and
Washington didn't hold a lot of appeal. Other Eastern Seaboard
cities we excluded for various reasons. So I came out to
California to interview at law firms , and chose what was then the
Howard, Prim, Smith, Rice, & Downs firm in San Francisco. It's
now the Howard, Rice, Nemerovski, et cetera firm. I joined them
in the summer of '70.
About a little less than a year later, I got a letter that I
guess would change my life. I got the letter from a man named
Bill Butler, who was then a fairly new lawyer for EDF in D.C.
saying he'd been referred by a mutual acquaintance, a fellow named
Chuck Fabrikant, who at the time was special assistant to then-EPA
administrator [William] Ruckelshaus, and who had been a co-clerk
with me. He had been clerking for Judge [Harold] Leventhal when I
was clerking for Judge McGowan. Bill asked me whether I knew
people in the Bay Area who might be interested in starting the EDF
office, and I volunteered myself.
I happened to have a business trip to D.C. shortly
thereafter. I interviewed quickly with him and with the people in
EDF's headquarters out on Long Island, and about a year after I
joined the Howard, Prim firm, I left the firm to help start the
EDF office.
Chall: Haven't regretted the move at all?
Graff: No, I haven't. But contrary to what's probably the case today, I
had essentially no environmental background whatsoever, a little
bit of public interest background, a couple of cases that I had
taken on during the year I was at Howard, Prim, but other than
that it was mostly my academic record or perceived promise or
something that caused them to hire me.
The Founders of EDF
Chall: The people who started EDF, were they environmentalists?
Graff: Yes, they were. I can give you some interesting histories of EDF.
The founders were primarily a group of birders out on Long Island
who had seen the osprey decline precipitously during the previous
decade or so, and who saw the spraying of DDT as the principal
culprit, and decided to try to do something about it. They
realized that simply displaying their scientific knowledge about
what had transpired was not going to be enough to turn around
public policy, so they hired a lawyer initially, and then shortly
thereafter, incorporated. An effort to initially stop spraying of
DDT on Long Island quickly spread elsewhere in the country, and
finally--! don't know about finally, but as of today, has
mushroomed into a more than $20 million a year national operation
with six or seven offices and a diverse portfolio of activities.
But when I started, which was only a few years after its
beginning in 1967, pesticide use and water projects, which were
two of the major problems for wildlife, and particularly for
aquatic wildlife, were major priorities. This was the concern
even before our office began. So even though there was no real
direction as to what environmental problems we should tackle when
we started the office out here, the combination of the prior
interest in water projects which EOF had already been fighting
elsewhere in the country, and the interest of one of my
colleagues, Jerry [Gerald] Meral, led us into the water and
pesticide directions.
I might point out that Meral fits into this story in various
ways over the years. He was an active rafter, actually canoeist,
Whitewater canoeist, and he was already engaged on a personal
level in fighting the New Melones Dam on the Stanislaus River. So
that became one of our major early activities, trying to stop the
construction of New Melones.
Chall: Were you given sort of carte blanche about what you were going to
do in California?
Graff: In nominal terms we were certainly asked to work on pesticides and
on water. In those days, the executive committee of the board
played a quite active role in reviewing in detail activities of
the staff, but most of the initiatives were staff -generated, with
approval from the then more active--! don't know about more active
board, but a board more immediately engaged in the substance of
the organization. And over the years, the board has evolved into
being more of a conventional board, where they set broad policy
but don't get involved nearly as much in particular details.
Chall: Was the first board really located close to the home base?
Graff: Yes. They were scientists at the State University of Stonybrook,
at the Brookhaven National Lab. In one case, Art Cooley, who's
still a board member, was a high school biology teacher, I think
at Belleport, Long Island. And so that area, that community,
spawned most of the original board members, or at least the most
active original board members. Charlie Wurster and Bob Smolker,
who has since passed away, came from SUNY, Stonybrook, and Dennis
Puleston and Roger Craig, who eventually moved away, from
Brookhaven. I guess George Woodwell was then at Stonybrook; he's
now I think at Woods Hole Lab. Those were among the founding
trustees, board members.
Chall: So, now you're here.
Graff: So jump twenty- five years, almost. [laughter]
Chall: You had moved into the Bay Area.
Graff: Yes. I had been in the Bay Area for a year, in fact, lived in San
Francisco and reverse-commuted for a year or so before moving to
the East Bay.
The Early Years of EOF in the San Francisco Bay Area: Water-
Related Cases
Chall: Was the office initially set up in the East Bay? Was it in
Berkeley?
Graff: It was set up in Berkeley, quite near campus, on Durant, in a
converted sorority house that was owned by that time and operated
by the Wright Institute, which is an alternative psychology
graduate program. They had extra space up on the top floor, and
that's where we set up the office. Stayed there for about a half-
dozen years, maybe, and then we moved to Dwight Way, also in
Berkeley, in an office building that was rented out by the Baptist
Seminary of the West, kind of kitty-corner from People's Park.
That area eventually became not very attractive, as People's Park
degenerated, and about seven years ago now, we moved here, to
north Oakland.
Chall: So what was your early background, then, on water issues, besides
the New Me lone s?
Graff: Well, actually within the first year and a half, about a year,
from the time we opened the office, we filed several lawsuits-
well, a lawsuit and an administrative proceeding dealing with the
Stanislaus River and New Melones and a lawsuit against East Bay
MUD, East Bay Municipal Utility District, the local water purveyor
and handler of sewage. And in fact, the East Bay MUD case is
still alive today. It went twice to the California Supreme Court,
once to the U.S. Supreme Court, and then eventually after many
years was tried twice over, once by the water board and once by a
local superior court judge.
Chall: What's the case?
Graff: There were really two major claims, one of which kind of fell off
during the course of all the pre-trial maneuvering, and one of
which was eventually tried. The part that fell off was that we
argued that East Bay MUD should reclaim water to a greater degree
than it did, so as to conserve the water resource eventually. 1
They've done quite a bit of it, but the state court of appeal on
the first time up through the system ruled that that claim was
actually, I guess it was the California Supreme Court that ruled
that that claim should have been handled as an administrative
matter by the water boards, and we never again took it up before
the water boards, so it was dismissed.
But the part of the case that went on for many years , for two
decades, was a claim that East Bay MUD should divert a
supplemental supply, if at all, from the American River downstream
rather than upstream so that the water could be placed in multiple
use, for fisheries and aesthetic and recreational values. The
water board essentially dismissed that claim, said East Bay MUD
could divert according to its contract with the Bureau of
Reclamation, but Judge [Richard] Hodge in a decision in the late
eighties-- '89, '90, I can't remember exactly- -ruled thatkind of
split the baby in halfsaid that East Bay MUD could divert
upstream, but only in wet years, or when there was an excess of
water in the river. 2 And that's still a local controversy.
So that was one that I got involved in. I handled it pretty
much exclusively within EOF for the first decade or so, and then
eventually others have come into it.
The New Melones case was primarily handled by the other
lawyer that we started together with, Michael Palmer, and I sort
of second-chaired that. That involved not only a legal campaign
in the courts on the adequacy of the original environmental impact
statement for New Melones, but a water board proceeding trying to
restrict the amount of water that could be used by the Bureau of
Reclamation from the Stanislaus, which we hoped would preclude the
construction of the dam, but didn't. 3
1 EDF v. EBMUD, 20 Cal. 3d. 327 (1977), vacated by 439 U.S. 811 (1978),
decided again as 26 Cal. 3d. 183 <1980).
2 Not reported (case #425955, Superior Court, Alameda County).
3 D. 1422.
And then there was a political campaign that Jerry Meral, our
scientist colleague, was heavily involved in. He was sort of the
main original promoter of what became Prop., what was it, 17? I
can't remember, in 1974. ' It was a salient feature of the
gubernatorial race between Jerry Brown and Houston Fluornoy, in
fact, one of the few issues that they publicly disagreed about.
And then the other case that I was heavily involved in was
the suit we filed against the Auburn Dam in 1972, together with
NRDC, the Natural Resources Defense Council. We included John
Leshy of NRDC, who's now solicitor of the Interior, and I, with
Jerry Meral 's active help, and Dr. Phillip Williams. Williams is
a hydrology consultant who's gone on to do many good things for
environmental groups on a variety of water-related issues,
including Mono Lake and the Owens River and various others-
American River--for many, many years. We originally persuaded
Judge [Thomas J.] MacBride in the U.S. District Court for the
Eastern District in Sacramento that the EIS [environmental impact
statement] was inadequate, but he declined to enjoin the dam's
construction. Eventually the feds filed another EIS which was
held adequate. But then the earthquake happened at Oroville, and
eventually Auburn for a lot of reasons didn't get built.
So Auburn, New Melones, East Bay MUD were our three big early
efforts, and as you've already heard, were largely attacked on a
litigation basis.
Now, the one other major activity in the early years which
Jerry handled, and then I sort of took over starting in 1975, was
to look at Delta issues. He became a member fairly soon after the
starting of the officeI'm not sure exactly whenof the Delta
Environment Advisory Committee, created by the then-Reagan
administration in Sacramento, to look at what should be done about
facilities in the Delta and other matters.
In 1974, November of '74, I took a leave from EOF to join the
transition staff of Governor-elect [Jerry] Brown, served there for
a little less than two months, helped him set up the environmental
and resources sides of his new administration, and then returned
to EOF. A few months later, Ron Robie was selected as director of
water resources. There's some good stories I can tell about those
few months .
'Proposition 17. To add sections of the Stanislaus River to the state
wild-rivers system; to prevent construction of the proposed New Melones
Dam, November, 1974.
But the upshot of that was immediately after Robie's being
selectedin fact, I think the next dayhe called Jerry and asked
Jerry to come up as his deputy, and Jerry left EOF- -in May or June
of 1975. ' The Delta Environment Advisory Committee was continued,
and I stepped in to replace him on that committee.
The Split in the Environmental Community Over the Peripheral
Canal, 1976-1982
Graff: A year or so later, in May of 1976, in somewhat of an historic
meeting of that committee, most, essentially all of my colleagues
who were there, voted to support the Brown-Robie-Meral Peripheral
Canal program, and I dissented. There then ensued a quite
vigorous internal debate within the environmental community over
what to do about that program, which evolved over the next four
years into two sets of state legislative battles, both separate
bills by State Senator [Ruben] Ayala.
Originally, the Sierra Club and the Planning and Conservation
League, probably the two most significant local statewide forces
in the environmental movement, supported the Brown program. By
the end of that period, they opposed it. Within the Sierra Club,
there was a national referendum as to what to do about the Sierra
Club's position on the canal and related matters. I wrote the
piece in the Sierra Club magazine opposing the support of the club
for that program.
I was also on the PCL [Planning and Conservation League]
board, and we had a big showdown at the PCL board, which
essentially split the board almost in half, and although the board
briefly continued to support the program, they essentially within
a year, had flipped and became opponents.
And through the late seventies into the early eighties, a lot
of what was going on here at EDF was opposition to the plan. A
lot of our opposition beginning in '77 was premised on what was
emerging at the federal level as a major shift in federal water
policy. Jimmy Carter had come in to office at the presidential
level and had, as you might recall, opened his administration in
the first few months with his infamous hit list of projects, which
included Auburn Dam among them.
'Ronald B. Robie, The State Department of Water Resources, 1975-1983,
Regional Oral History Office, University of California, Berkeley, 1989.
One of our guiding principles was that, with the federal
administration leading the way in redefining how water policy
should be pursued, it was the wrong time to endorse, albeit an
environmentally dressed up, continuation of the past water
policies in California. Now, the opposing point of view, of
course, was that those environmental bells and whistles were
important enough to support even the construction of the
Peripheral Canal, and that's why- -obviously there was a lot of
difference.
By the time it got to referendum in '82, 1 the environmental
movement was almost uniformly opposed, and in the Bay Area, the
votes, I think the minimum anti vote was 89 percent in Santa Clara
County, and it went all the way up to something--! think it was 96
percent in Marin, which are votes reminiscent of the Soviet Union,
[laughter]
Chall: In southern California there was a break among the growers, wasn't
there?
Graff: Yes, we split the growers. The Boswell and Salyer firms joined
us, and even within southern California, we got large numbers of
votes , largely on economic grounds .
And one of the parts of the story that I guess I wanted to
get into with you, a major element in that campaign was that I
worked pretty closely with unusual kinds of people, at least from
my perspective, Boswell and Salyer and their representatives, for
example . I became quite friendly during that campaign with Doug
Watts, who was a partner in what was then Russo Watts, eventually
became Russo Watts & Rollins. He was a major conservative
Republican political consultant. He also eventually ran the last
month of the [George] Deukmejian for governor campaign in the same
year, that was '82, which defeated [Tom] Bradley for governor. I
became pretty good friends with Doug, also ended up spending a lot
of time with southern California editorial boards, which I
probably would never have done otherwise: with the Orange County
Register and the San Diego newspapers and various other quite
conservative, as well as not-so-conservative, papers down there.
'Proposition 9, referendum to authorize construction of the Peripheral
Canal and other water facilities, June, 1982.
10
The Evolving EDF Advocacy Policy:
the Staff
Innovative Directions of
Graff: So I don't know what came first, but in terms of the evolution of
EDF's political thinking, we became much more comfortable with the
idea of collaborating, when appropriate, and working with
interests who in many other contexts would be considered
antagonistic. Just looking at it from a personal point of view,
the sort of prototype of how to do the job that we were doing at
EDF when we started in the early seventies was Ralph Nader. His
modus operandi was always to hold the opposition and the special
interests at arm's length, to take what seemed from my perspective
always to be sort of a purist approach.
And I think the evolution over the course of the twenty years
that I've been doing this job has been away from that concept to a
more pragmatic one of finding allies wherever they might reside,
and always on a personal level essentially keeping lines of
communication open with all kinds of different interests. When we
eventually get to our Miller-Bradley story, I think that's
significant, in that we ended up with alliances in that struggle
with the big urban water districts, with the California Business
Roundtable, and had fruitful negotiations with the representatives
of agribusiness. And I think all that would not have been
possible if we, and I personally, had stayed in the mode of, "It's
us against them, and we're doing battle with the bad guys."
Chall: Well, EDF seems to be in the forefront of this whole idea of
collaboration. I've wondered whether it's only here, or have you
moved that into the center of EDF?
Graff: I think my colleagues, Zach Willey and David Roe and I, were
instrumental in helping bring EDF around to that set of
approaches.
Chall: That's EDF not just here but nationally, the whole EDF?
Graff: Right. In fact, I brought--! don't know how many of these
documents you actually want to carry along with you- -but we made a
set of writings for you both of ours and of others going back to
1981, which show some of the evolution of this thinking. Some of
it is ours. There's a piece in here by Fred Krupp, our executive
director, in 1986, which set the stage for this. 1 That followed,
in factno, that was followed shortly thereafter by a piece in
'Frederic D. Krupp, "New Environmental ism Factors in Economic Needs,"
The Wall Street Journal, November 20, 1986.
11
Chall:
Graff:
the L.A. Times on the so-called third wave of environmental
advocacy, which I had a major hand in prompting. 1
So there's an evolution. It looks in retrospect a lot more
organized than it probably was, as it in fact evolved. Zach and
David and I got involved in the mid- seventies. I should say, when
Jerry Meral left, he was replaced by Zach Willey, who is a Ph.D.
economist. It's really Zach's insights on the value of economic
approaches to solving environmental problems that have probably
been intellectually at the heart of the work we've done in water
in the two decades that followed. David came on board as the
other lawyer in the office a year later, 1976--
His last name was what?
R-o-e, and he soon inherited from me energy--! was sort of
carrying two portfolios, water, and electricityand energy, at
that time. Some of our major successes took place in electricity
and energy in the period of the late seventies and early eighties.
In fact, David wrote a book called Dynamos and Virgins, which I
didn't bring but I can give to you, recounting our battles-
Graff: --from '75 on, together. Although water marketing was an idea
that had been promoted by various economists and others for
several decades prior to when Zach picked it up, it was Zach's
push that encouraged us to keep working on that. In fact, in
1983, we published a major report written by a fellow by the name
of Rob Stavins, who at the time was a young kind of itinerant
researcher who later went on to get his own Ph.D. in economics at
Harvard and is now a professor at the Kennedy School at Harvard.
He later on became the coordinator and principal editor of
something called Project 88, which was a report commissioned by
Senators [Timothy] Wirth and [John] Heinz, Democrat and
Republican, respectively, from Colorado and Pennsylvania, and
which produced the work that became the grounding of the acid rain
provisions in the Clean Air Act of 1990. 2
Project 88 was written with the idea that whoever was elected
in 1988, November '88, would hopefully take this new set of ideas
about using economics in the environment seriously. It happened
to be [George] Bush who was elected, and in fact shortly after the
'Roberta A. Jones, "'3rd Wave 1 Alters Course of Environmental
Movement," Los Angeles Times, December 22, 1986.
2 II
Project 88: Harnessing Market Forces to Protect Our Environment."
12
November election, even before Bush was inaugurated, one of his
principal aides, Boyden Gray, who became counsel to the president,
approached EDF and asked for our help in designing an acid rain
control program for the Bush administration.
So there is a sort of an intellectual progression here, and a
number of personalities who started or were active in our office
moved on to other places, Stavins being a key one of those.
Chall: That's very interesting evolution here.
The Metropolitan Water District and the EDF Concept for the
Imperial Valley
Graff: And Stavins is- -yes, I should give you that, too. The report he
wrote promoted the idea that the MWD--the Metropolitan Water
District of Southern California had been telling people through
the late seventies into the Peripheral Canal campaign of the early
eighties that they were about to be cut off from half or more of
their water supply from the Colorado River--could replace that
supposed loss or perceived loss with an investment in conservation
measures in the Imperial Valley.
Chall: Oh, it came from that?
Graff: And that did indeed come to pass. In fact, some of these early
pieces recommend that in various forms.
During the course of promoting that, we became obviously very
entangled or entwined with MWD. I still recall when the report
was nearly complete and we took it, Stavins and I--or maybe it was
Zach and I, I can't rememberto a meeting at MWD with then-
assistant general manager Dave Kennedy and then-chief counsel Carl
Boronkay, and asked them if they wanted to review it before it was
published. They both kind of blanched and decided that that was
not in their interest, and declined to review the report before
its publication. [laughs]
And of course, they both moved on to bigger and better
things --Boronkay as general manager of MWD, and Kennedy as
director of the Department of Water Resources in Sacramento.
Chall: They finally accepted the Imperial Valley concept?
Graff: Well, eventually, yes. I didn't get you all the press, but
Boronkay, in fact, was originally reported by a very enterprising
Cog Armeies Sfones
12A
Saturday, April 22, 1989/Part II
Antidote to Our Doom Affliction
By THOMAS J.GRAFF
In the past year the environment
has returned to prime time. Inter
national concerns about potential
global warming, accelerating de
struction of tropical rain forests
and a gaping hole in the strato
sphere above Antarctica gripped
people and nations around the
world. The networks and newspa
pers have been full of stories of
gloom and doom medical wastes
closing East Coast beaches, tanker
spills, and pesticides and poison
scares causing consumer and
regulatory panic. The impression
persists of a planet reeling out of
control, with potentially terrifying
consequences just over the horizon.
We need antidotes to this afflic-
lion. No doubt fear and anger are
great mobilizers of public passion
and an aroused public will be
necessary to marshal the resourc
es, financial and political, required
to address the problems we face.
But such mobilization of public
passion is not enough. We also need
public policies and social compacts
that will attain environmental ob
jectives with relatively little con
flict and at lower cost.
It is here that a recent report
issued by two U.S. senators. Timo
thy Wirth (D-Colo.) and John
Heinz (R-Pa.), may turn out to
have a greater positive impact on
our planet's future than all the
scare stories that have dominated
the news. Titled "Project j&Jjari.
nessing MarRet Forces To Protect
Otn Environment.*' the 130-page
study addresses subjects_such_as
gtobaljanci domestic air pollution,
energy, water resources and solid
and lidiai duus wastes"
~lt dues nut, however, purport to
be all-conclusive. Instead it applies
a unifying theme to seven sets of
major environmental problems: the
use of economic criteria or market
forces as a means of accomplishing
desired environmental goals at the
least cost.
A group of more than 50 envi
ronmentally concerned Americans,
including environmentalists, in
dustrialists, bureaucrats and aca
demics, led by Prof. Robert Stavins
of Harvard University, Workori im.
deT the senators direction. What
they produced was a bipartisan,
wide-spectrum consensus support
ing economic incentives as a pre
ferred means of accomplishing en
vironmental goals.
The report acknowledges that
both public and private spending
for pollution cleanup and resource
preservation will be constrained in
a time of severe budget deficits and
increasing international competi
tiveness. But it counters that eco
nomic or market-based incentives
will provide more pollution reduc
tion and more efficient and envi
ronmentally sensitive resource al
location than government-imposed
controls, at any level of public or
private expenditure.
Of course, using economics to
foster environmental improvement
is not a new idea. Less than a
decade ago, spurred on by environ
mentalists and regulators, Califor
nia's leading public utilities.
Southern California Edison and
Pacific Gas and Electric, surprised
their industry when they aban
doned the construction of large coal
and nuclear power plants in favor
of economically and environmen
tally superior alternative mea
sures. Now their approach is com
mon wisdom around the country, if
not the world.
Similarly, earlier this year, two
of California's leading water utili
ties, the Metropolitan Water Dis-
-tricrot southern California and the
-hnpefial Irrigation District, an-
TtOTinceaT swap of conservation
Investment tor water. This water-
iiiarkeilng arrangement signals
that the highest levels of the
Western "water industry" have
also come to appreciate that sound
economics should be a key deter
minant of the future of water
development in the American
West.
Such success stories need not be
limited to domestic energy and
water issues. A market approach
limiting the total production and
use of chlorofluorocarbons holds
great promise as the most efficient
means of reducing the threat these
ozone-depleting chemicals pose to
the Earth's stratosphere.
Economic incentives to plant
trees may go a long way to offset
the carbon dioxide emissions that
contribute to the greenhouse ef
fect. "Debt for conservation" swaps
are a promising means to protect
tropical rain forests. And allowing
polluters to trade strictly limited
amounts of emission rights for a
range of widely dispersed air pol
lutants is a worthwhile strategy to
address regional air-pollution
problems. It is also a possible
avenue to breaking the political
stalemate that has blocked legisla
tion to control acid rain.
On the other hand, one should be
careful not to claim too much for
the economic approach. Politics,
influenced by science and the clash
of public values, will still decide
how much pollution is acceptable.
Spending for environmental pro
tection will likely have to be
increased. Existing regulatory pro
grams should be built upon and
supplemented by market incen
tives, not scrapped.
No doubt the political parties and
interest groups represented in the
Project 88 effort will continue to do
battle on a wide spectrum of envi
ronmental issues. We will always
fight over how serious particular
environmental problems are, how
much environmental preservation
we want and what we as a society
are willing to pay for that preser
vation. But the key lesson of this
report is that all of us have a
common interest in finding meth
ods for dealing with environmental
problems that are cost-effective,
bipartisan and relatively uncon-
tentious to implement.
If we learn that lesson well,
perhaps we can make enough
progress on the major environmen
tal problems we confront that
%vithin a few years, the environ
ment will again be relegated to the
back pages and to Saturday morn
ing television shows. If so, all of us.
environmentalists especially, will
have reason to applaud.
Thomas J. Graff is a senior attor
ney with the Environmental Defense
Fund.
13
reporter, Cheryl Clark of the San Diego Union, as being critical
of the report when it first was published, but within a year, had
switched his position and became a strong advocate as general
manager of putting that deal together.
Chall: Was their attitude one of not talking to the so-called enemy? Or
were they just afraid to consider that idea at all?
Graff: I think they were still of the mind that if they endorsed a
program whose merits they probably recognized, they would undercut
their own support for what they thought was most important, which
was building a peripheral canal. And I think eventually Boronkay
more quickly than Kennedy decided it was more important to get the
supplemental water that would come from such a program than to
promote a canal whose construction I'm sure they both still
believe is ultimately going to happen and is necessary, but in the
meantime, they better do other things that would shore up southern
California's water supply.
Chall: Do you think this is Boronkay 's first dip into the idea of the
economics of water marketing, or whatever you termed it at that
time?
Graff: Oh, absolutely, I think so. You never know what goes on behind
closed doors in the camp of other entities. But in public, that
was for sure his first foray in that direction. And I think it
took him a while. I think he got out ahead of his board of
directors from time to time down there, and he sort of brought
them along slowly. He also brought into the MWD, in part because
of his economic background, Tim Quinn, who has since become a
major player in promoting economic approaches at MWD.
Working with the State Legislature on Water Legislation
Chall: In your work dealing with the Peripheral Canal and the Ayala
bills, did you begin to do actual lobbying, which you might not
have done before?
Graff: Yes. EDF's tax status is such that, particularly in that period--
I can't remember when the tax reform act of some year changed the
rules slightlywe were restricted to occasional lobbying except
when invited to testify. Later on, it changed to where there was
. and is a specific dollar limitation on how much, either on a
percentage basis or on a dollar basis, EOF could spend on
lobbying. The fact of the matter is throughout the years, we have
done very little, if any, of the sort of traditional, what people
14
traditionally view as lobbying, which is going door to door among
assemblymen and senators or congressmen and senators, seeking
votes.
What we have done is we've worked with key legislators and
their aides in designing bills, sometimes helping to write them
even, and then in working on sort of an overall strategy in
promoting legislation or sometimes in opposing it. So it's
lobbying of a different kind, and it tends not to be a lot of
actual walking the halls of the Congress or the state legislature.
And it's been a major part of our activities, very little of it
done in Sacramento or Washington, actually, but a lot of it done
on the phone.
Chall: As we get into the water issues here with Miller-Bradley, so much
of what you were doing seems to have had to do with transfers or
water marketing. I just wondered, on the state level, whether you
had worked along with Richard Katz, who seemed to have had quite a
number of transfer bills over the years, or with Phil Isenberg,
and some of the others at the state level on these issues?
Graff: Yes, it's interesting. This goes back a few years. I don't know
where the impetus from Katz's original water transfer bill came
from, but my recollectionand that goes way back, like 1980--that
we were not involved in it. It just sort of happened, from our
point of view. But obviously, as the years went on, we worked
closely with Richard and with Phil Isenberg, and with [William]
Filante on the Republican side, and others, to design improvements
in the state water transfer legislation. And we worked
particularly closely with Isenberg on the Mono Lake legislation of
1989, worked with Isenberg on the Los Banos Grandes bill I think
of '86.
So yes, we did--as our agenda and Katz's sort of became
obvious to one another, we started to work very closely. And
during the time of the Miller-Bradley bill, we were trying to pass
comparable state legislation, unsuccessfully, as it turned out.
But I was just going through some of my old calendars, trying to
figure out where I was at various times and dates in the '89- '90-
'91 period, and there were a lot of meetings having to do with the
Katz state water transfer legislation.
15
Contacts with the Agriculture /Water Community
Chall: What about your relationship with the growers, let's say the water
contractors, [Jason] Peltier and David Schuster? Some of these
folks were writing bills also.
Graff: Yes. I also found--! remember a couple of meetings, and as I
looked in my calendar, it confused me a little bit, because they
seemed to be not quite when and where I remembered them. But I
recall at least two meetings, and I'm not sure who all was at each
of them, one with Schuster and [Stuart] Somach, and one involving
Peltier and I'm not sure who else. I think maybe Schuster as
well. According to my calendar, one was late in '90 and one was
early in '91, May of '91, where we discussed what was then their
legislation to address from their point of view the fish and
wildlife problem of the CVP [Central Valley Project].
Senator [Pete] Wilson had introduced in the '89- '90 Congress
a bill that was designed essentially to enact into legislation the
recommendations of a task force that had been put together to look
at some of the environmental problems, fish and wildlife problems,
of the Sacramento River. That bill had not gotten very far--it
didn't get anywhere, I guess. It was opposed by environmentalists
just on its own merits, in terms of what was going on in the
Sacramento River, for failing to address the key question of how
much water was needed for the environmental resources of the
Sacramento River. It primarily dealt with some of the physical
and structural problems of Sacramento River fisheries, such as the
Glenn Colusa diversion dam and the need perceived by the water and
power users and some fisheries people for a temperature control
device at Shasta Dam, and so on.
That Wilson bill, though, was pending in the '89- '90
Congress. I should know the numbers of those Congresses. But it
never got significant support from the larger environmental
organizationsEOF, NRDC, even Sierra Club. It had support from
some of the local fisheries interests who had been involved in the
design of the Sacramento program, and whose point of view was that
the measures in that bill were useful, albeit not complete as a
package of needed reforms. But since various Republicans, Senator
Wilson, some of the local congressmen up there, were supporting
it, they were supporting it as well. So it had some environmental
support .
By the May meeting in '91, which is sort of jumping forward a
bit, that I had with Peltier, I think it wasat least my calendar
shows me meeting with Peltier in May of '9 Ihe and, I know,
Schuster and Somach had put together a revised version of the
16
Chall:
Graff;
Chall;
Graff;
Chall;
Graff;
Chall;
Graff:
Chall;
Graff;
prior Wilson bill and were hoping to get broader environmental
support for the measures in that bill.
By that time, [John] Seymour had already been appointed to the
Senate [January 1991].
Seymour didn't introduce that bill. The so-called Somach-Schuster
draft, of which there were many versions, I think, in the first
eight, nine, ten months of '91, were kicking around, but it was
never introduced as a formal bill until the very fateful day of
November 21, 1991.
Yes. But even now you're talking about sort of a fish bill, then,
in a sense.
Yes, the [water] contractor's fish bill.
Left over from the Wilson-
Right, and it was mainly Sacramento River. In fact, exclusively
Sacramento River focused.
Now we can get into Miller's fish and wildlife bill.
Okay. Well, let's go backbefore we jump into that--
Why don't you go wherever you want to go?
What I have here are articles starting in 1981, during the
Peripheral Canal campaign in "82--wait a minute, I guess just
after. I guess one of these is just after the Peripheral Canal
referendum was defeated, then a couple dealing with the MWD-IID
[Metropolitan Water District-Imperial Irrigation District]
proposal of EOF, some dealing with kind of unusual bedfellows,
including James Watt, with whom we had a brief apparent
flirtation, and then moving up into the mid-eighties, moving
towards our EDF's third wave activities. I guess all this stuff
gets us to 1988 and Project '88. I guess I'm missing one of the
Project '88 pieces. Eighty-nine, here we are. Let's get to the
1990s. 1
By the way, I don't know if you want this, but these are
copies of press articles I dug out.
'All papers obtained from Mr. Graff during the course of this
interview will be deposited in the Water Resources Center Library archives
on the Berkeley campus; a few will appear in the appendices of this volume.
17
Chall: Oh, this is excellent for my research and for the archives as
well.
Graff: These are some EOF personal profiles. I didn't know if you wanted
those, but there they go, and these are some articles that we
wrote--! wrote or Zach Willey and I together wrote.
Chall: Oh, that's fine, yes. Now, that's the Columbia Journal, you're
holding- -
Graff: This is a piece by Zach and myself on federal water policy reform
in the Columbia Journal . '
Chall: You'll want this back.
Graff: I actually have it in paper form, if you'd rather have it that
way.
Chall: I think I'd rather have it in paper.
Graff: Okay, so I'll get you a copy of that.
Anyway, yes, so let's go to '89-90, or maybe we should first
go back to '86.
Chall: Yes.
Drafting the Coordinated Operation Agreement Legislation,
1986
Graff: In '86, we worked withthere was something called the Committee
for Water Policy Consensus, which was headed by Sunne McPeak in
northern California. During that time period also, I think it was
1985, maybe it was early '86, the Reagan and Deukmejian
administrations, and in particular David Houston, the regional
director of the bureau [Bureau of Reclamation], and David Kennedy,
the director of water resources, had negotiated a formal
Coordinated Operation Agreement between the federal and state
projects. There was a general recognition that in order for the
federal government to sign that agreement, it had to be ratified
by Congress.
'Zach Willey and Tom Graff. "Federal Water Policy in the United
StatesAn Agenda for Economic and Environmental Reform," Columbia Journal
of Environmental Law Vol. 13, No. 2, 1988, pp. 325-356.
18
So we spent a good part of 1986, or maybe it was late '85,
early '86, putting together the so-called COA bill. And it was
interestingit was the one time, and I saw this stated in a
recent interview by Governor Wilson, where he, while he was
senator, and Congressman [George] Miller, had actually worked
together to put a piece of water legislation together. Wilson had
introduced a so-called clean bill, which merely said that the
federal government shall ratify the agreement, period. But Miller
insisted on protections for the Bay-Delta Estuary as part of the
package to authorize the COA's signature. I worked sort of
intensively to help on that, and negotiated with Schuster and
Somach, among others, particularly those two, representing the
contractor community.
Eventually, of course, Dan Beard and John Lawrence and Steve
Lanich and Charlene Dougherty were all part of Miller's team, and
we eventually put together a bill that had very broad-based
support: northern California, southern California, federal,
state. The only person, I think, who really ended up not liking
the bill was David Houston, because I think he perceived it, and
probably rightly, as having taken away some of the benefits to the
federal project that he saw in the agreement as draftedtaken
away in order to pass the bill.
Kennedy, I always thought, although he was nominally not
active in the negotiations, had seen further ahead than Houston,
and had given up things in the negotiation that he rightly
concluded Miller would eventually take back on behalf of the
environment. What the state really wanted out of that agreement
was access to federal water, to help expand the use of water
within the State Water Project. What they gave up was use of the
state aqueduct for conveyance of federal water. And also, the
agreement on how much each of the projects would, on a percentage
basis, give up to meet Bay-Delta standards. And I think he
thought he'd, and probably rightly, come out with the better of
the deal, when all was said and done.
Anyway, the business community became active in that
struggle, and we, with a united front of environmentalists,
urbans, agricultural interests, and business people, went back to
Washington and persuaded what were some skeptical people in the
Senate that the compromise that had been put together in the House
and agreed to by Miller and the Valley Democrats- -at that time,
[Tony] Coelho was still in office as the leader of the Central
Valley delegation should essentially simply be ratified and
approved in the Senate. And Wilson and [Alan] Cranston both
worked on that, although my perception always was that Wilson,
although he endorsed it, never really appreciated why there had to
be all this additional assurance of protection for the Bay-Delta
19
as part of the deal. He would have been happy, I think, with what
was essentially the contractors' version of the bill.
It was only later, in "89, that we worked closely with Otto
Bos in particular, and John Amodio, who by then was working with
Wilson's election [gubernatorial] campaign, in getting Wilson to
take a very strong pro-Mono Lake position on a piece of state
legislation that Isenberg and Bill Baker had put together, and
with then-Senator Wilson's active support, managed to get Governor
Deukmejian to sign this bill, which Kennedy in the back rooms
actively tried to defeat.
In fact, as I was going through my calendars in preparation
for this interview, I saw a meeting I had with Otto Bos in May of
1991, roughly a week or two before he died. I continue to believe
that Wilson's general lack of leadership in the water field during
the last three years, in fact leadership on behalf of one
interest, Central Valley agribusiness, might not have occurred had
Bos still been there to give him contrary advice. Bos generally
was sort of looked upon to build broad coalitions and consensus on
major matters. I think he would not have counseled Wilson to be
as intransigent during the course of the Miller-Bradley bill in
'91- '92 as Wilson turned out to be.
But in '89 and '90, essentially, Wilson did the same thing in
that Congress as he had done with the COA bill originally, which
is to introduce a bill promoted largely by the water interests,
and to have little or no direct contact with the environmental
community, which had a very different view of what should be done
than what was in either of his bills.
Now, in "86, when Miller and Coelho and others on the inside
and the interest groups on the outside put together a broad
coalition for the COA bill, he [Wilson] went along, and in fact
took credit for having supported a broad-based compromise, and
continues to take credit to this day. But in '89- '90 he, as far
as I know, never reached out to the environmental community to see
what its critiques of his approach were, and yet, he continued in
the campaign in particular to promote that he had an environmental
bill that was going nowhere and in part blamed the Democrats for
that.
20
Background on the Miller-Bradley Bill
Senator Bill Bradley 's Interest in California Water Issues,
1989
Graff: Also in '89-'90, [Bill] Bradleywell, let me go backwards.
Bradley succeeded to the chair of the Subcommittee on Water and
Power in the Senate Committee on Energy and Natural Resources in
'89, and I think quite consciously decided that he was going to
make an imprint on western water from that vantage point. One of
his first acts was to remove the person who had been the chief
aide for water in the Senate, a fellow by the name of Russ Brown,
and to bring in somebody new who would be an activist on behalf of
water policy reform in the Senate. He hired Tom Jensen, who came
to him from the--I can't remember the proper name of it--but the
Northwest fisheries commission up there, who had been active on
water policy reform and Indian reform issues in the Northwest.
Bradley also, I think, made the calculation that he was going
to use the "89- "90 period to educate himself on California water,
and that he would promote reform on a limited basis, mainly on the
acreage limitation issue, the rec [reclamation] reform issues. In
other states, in particular Nevada, he tackled the northern Nevada
controversy over Pyramid Lake and the Stillwater National Wildlife
Refuge, and the water supplies for the Reno-Sparks urban area, and
the Newlands Project, the oldest of the federal reclamation
projects in the West, all of which are entwined in a very complex
struggle involving several different kinds of environmental
resources as well as two different Indian tribes and urban and
agricultural interests. This entire complex of problems, from my
perspective, and I think that of David Yardas, my sidekick, whom
I'm sure you're going to meet shortly, was in many ways a dry run
for Bradley. It was sort of an experience gatherer in a much
smaller scale of what would eventually take place in the 102nd
Congress in California.
Chall: Why would he be interested in California or the western water
issues? He did come into a subcommittee that certainly could have
used his interest, but he could have just done nothing.
Graff: Well, there are a couple of questions I don't have the immediate
answer to. One is, why did he end up with that subcommittee? Did
he ask for it, or was it given to him? I don't know the answer to
that. I also don't really know whatno one knows the motivations
of other peoplewhat is fact, or maybe it's opinion, but it's
pretty well formed opinion, is that he hired a very strong,
aggressive, and competent person who had reform tendencies in the
21
person of Jensen, and essentially eased out a person who had very
different tendencies in the person of Russ Brown. Russ Brown had
had a long history with that committee, had originally been in the
majority doing the same work for Scoop [Henry] Jackson when
Jackson was chair of the committee. Then, when the Republicans
took over the Senate in the early eighties, he comfortably moved
over to staff the Republican side of the committee, and then
eventually moved right back to staff the Democratic side. I mean,
he was basically nonpartisan, pro-water development.
And Bradley told [Bennett] Johnston, who was the chair of the
full committee, by 1989, that he wanted his own person. Now,
Jensen always saw himself as serving two masters: Bradley as
subcommittee chair and Johnston as committee chair, which is
sometimes not a particularly easy thing to do, because the two
were not necessarily of one mind. But at some point, I would like
to talk about Johnston- -
Chall: Yes, we need to.
Graff: Johnston, of course, eventually became a key supporter of our
point of view. I did look, and I saw in my notes several meetings
in 1989 in the summer and fall with Bennett Johnston, Jr. He was
a staff person at the time at TPL, Trust for Public Land, and
became active with Zach and me in our efforts to put together
water deals for Mono Lake. I mean, our idea, we had worked with a
group, sort of a consensus group that had been formed under the
auspices of UCLA extension, a fellow named Leroy Graymer, which
included the city of L.A., the Department of Water and Power, the
Mono Lake Committee and other environmentalists, the Forest
Service, which had an interest up in the basin, and the--
Graff : I was telling you about the Mono Lake group. We were looking at
the idea of finding replacement water, and our focus was on water
marketing. We had found some water districts and growers in the
northern San Joaquin Valley who might be interested in selling
water to Los Angeles, and the lake, indirectly. EOF had not had
real acquisition expertise, and so we went looking to the
environmental groups who had land acquisition expertiseThe
Nature Conservancy, with whom David Yardas was working closely in
Nevada, and TPL. Bennett Johnston, Jr., was the staff person from
TPL who was excited about this prospect and excited about bringing
TPL into the water acquisition business, sort of comparable to its
land acquisition business.
So that personal relationship that had built up with Bennett,
Jr., eventually probably was helpful in kind of subtle ways in
22
having access to the staff of his father, and sort of
communicating what the environmental perspectives were, as Bennett
Johnston, Sr., entered the water picture in late '91 and early
'92.
Anyway, Jensen saw himself as serving both Bradley and
Johnston. Now, Bradley had a major hearing in, I guess it was
August of "89, in Sacramento, where he invited all the California
water interests to testify.
Chall: Are you sure that ' s- -you 're probably right. I have a date of
September '91, but I could be wrong. He might have been here
earlier.
Graff: Yes. It was August 29, '89.
Chall: Okay. So that was an earlier hearing than I know about.
Graff: Oh, yes. And this had all the water interests. It was all day.
Vic Fazio came and sat by Bradley 's side. And it was basically a
fact-finding hearing, just generally what are the various
positions of the water interests. I think it was that hearing, I
can't vouch for this, where he got into kind of an argument with
Boronkay. Boronkay came in, and I don't know if this was
conscious or unconscious, but he said, "California is growing by
the equivalent of a St. Louis every year." I don't know if he
knew that Bradley was from St. Louis originally, and-- [laughs]
But Bradley bristled, as I recall, and asked Boronkay whether
Boronkay- -didn't he have some responsibility to limit that growth,
if he couldn't see the water supplies necessary to meet that
growth. And Boronkay in turn bristled back, and their
relationship always was one that had a fairly high level of
tension.
But I have also in my calendar about a month before that, on
the 31st of July, Jensen had come out here to California and had a
meeting with the environmentalists. In fact, it was at a
restaurant near here, the upstairs room at Yoshi's, where he laid
out what Bradley 's schedule was going to be, basically that he was
not going to be ready to address major environmental legislation
in California in '89- '90, but was going to do it in time in the
following Congress.
Chall: What went on at the August 29 meeting?
Graff: Basically it was a hearing. It was a big, open hearing. It was a
fact-finding hearing. What are the problems in California water?
All the major interests were represented by one or more persons.
23
Chall: And that was where?
Graff: It was in Sacramento, it was in the Resources Building auditorium.
Chall: Department of Water Resources?
Congressman George Miller's Fish and Wildlife Bills, 1989,
1990, 1991
Graff: Well, Resources Agency. The ground floor of the big Resources
Building. But Miller's staff had been coming out to California on
a periodic basis from the mid-eighties on, to interview
environmental groups. I remember having a couple of funny
encounters with these folks, some of whom are good friends. I was
always skeptical that Miller could move fish and wildlife
legislation, because basically the Valley people would be opposed.
Whereas he was always quite effective in opposing bad things from
the time even when he was a junior congressman in the mid-
seventies, '77, when passing affirmative legislation was hard.
But, given the lineup of the interests, given who were
senators, given that the agribusiness interests are not shy about
throwing their money around, the fact that the staff would come
around on a periodic basis and say, "What is your wish list, your
dream of fish and wildlife legislation" never struck us as
particularly a promising approach. And of course, for many years,
they didn't even introduce legislation.
Finally in '89, Miller for the first time introduced a
serious piece of proposed fish and wildlife legislation, which to
be honest, we at EDF didn't take very seriously, for the reasons I
just described. And also, because by the summer of '89, it became
evident to us that Bradley, who was a necessary collaborator in
making this happen, was not ready and wasn't going to engage in
California until '91.
Nevertheless, to our surprise, Miller worked out compromise
legislation with the Valley Democrats in, I guess it was the
summer of '90. We had significant problems with that legislation.
Editor's Note: To my inquiries about how Miller's California Fish and
Wildlife Bill of 1990 (H.R. 4700), introduced May, 1990, could become H.R.
3613, the bill introduced by Douglas Bosco November 8, 1989, which
contained no language on contracts, Mr. Graff sent an explanation and a
packet of the bills and memos.
23A
(1) H.R. 3616 (?) (Bosco, 101st Congress, 1st session), the "Upper
Sacramento River Fishery Resources Restoration Act" (with as TG notation
indicating that "this is an extra copy of Bosco 's Sacr R. bill" and a hand-
scribbled "HR 3616" below the sponsor line) ;
(2) H.R. 4700 (Miller, 101st Congress, 2nd session), the "California
Fish and Wildlife Protection Act of 1990" (as introduced);
(3) H.R. 3613, the "California Fish and Wildlife Protection Act of 1990"
as reported by the Full Interior Committee" on July 25, 1990 (which includes
as Title I an "Upper Sacramento River Fishery Resources Restoration Program");
(4) our 7/24/90 letter supporting what emerged from committee the very
next day as item (3); and
(5) my memo of 8/2/90, which looks like a pre-cursor to "Yardas-
Garrison. "
In sum, it looks to me like (3) is the melding of (1) and (2), together with
the new/renewed contracting provisions (sections 406, 409) that combined to
cause us concern (as reflected in (5)). Item (4) supports this reconstruction
-- as I recall, a major debate was whether to proceed with (1) alone, or to
combine (1) with the more comprehensive reforms in (2). Our 7/24 letter
argues against a "piecemeal" approach in favor of a "comprehensive" approach,
whatever the final details.
I hope this helps.
P.S. See also the "June 26" (must have been July 26) memo from Charlene
Dougherty (Miller's staff, copy also enclosed), which notes that "we amended a
major portion of H.R. 4700 into H.R. 3613."
23B
June 26, 1990
MEMORANDUM
TO: Supporters of H.R. 4700
FROM: Charlene Dougherty
SUBJECT: Markup of legislation
The Subcommittee on Water, Power and Offshore Energy
Resources reported H.R. 3613 today as amended. A copy of the
amendment in the nature of a substitute is attached.
You will see that we amended a major portion of H.R. 4700
into H.R. 3613.
You will also see that portions of H.R. 4700 have been
changed. The explanation of the amendment highlights a few of
those changes. Changes have been made in the limitations section
of the bill as well.
During the markup, Congressman Miller made a commitment to
continue to work with Congressman Lehman on the legislation. He
also invited all other interested parties to work with the
subcommittee between now and full committee markup on their
concerns an invitation that obviously includes you.
It is our goal to put together a bill that can pass the
House and take that bill to the floor this session.
All of your work on behalf of California's fish and wildlife
is making a big difference. We are as far along as we are today
because of your support and your ability to let Members of
Congress and the public know how severe fish and wildlife
problems are. We still have a number of hurdles to cross before
enactment and we need to keep pushing as hard as we can.
Call me if you have questions and comments.
Thanks again for your help and support.
24
Chall:
Was that California Fish and Wildlife Protection Act of 1990? 1
The Natural Resources Defense Council and California Water
Issues
Graff: Right. And it was interesting. I've sometimes given talks,
particularly to environmental audiences, where I talk about one of
the historic water rights settlements of the western world, from
my point of view, that occurred in September of 1990, when EOF and
NRDC reached a settlement. [laughs]
Chall: You otherwise weren't on the same--?
Graff: That's correct. We had been doing basically different things, not
necessarily in contradiction to one another, but certainly very
different. We had been in the water game, as I have described,
since 1971. They had left water alone from the time they opened
their offices a few months after we opened ours out here, pretty
much left it alone--they had been involved in one caseuntil
maybe the early eighties. I can recall a meeting where they came
to our office and said they were going to start a water program,
which struck us as somewhat odd at the time, since we had sort of
divvied up turf. They were involved in forestry, which we had
never done, and they were sort of invading our turf, but we
decided we weren't going to claim an exclusive franchise, which we
probably couldn't have succeeded in defending anyway.
And they ended up, we sort of ceded to them an area that we
had worked on for a number of years and had been quite
unsuccessful in promoting, which was trying to get the Bureau of
Reclamation to price its water at something closer to the actual
value, or marginal cost, or however you want to describe it,
because they had resisted and we were getting nowhere. So we
figured if there's a wall you can bat your head against rather
than us , go ahead and be our guest .
So they had come in and had done some serious work in the
early and mid-eighties on the subsidies in the Bureau of
Reclamation's program, both in California and West-wide, and had
developed a quite active water presence based largely on that set
of issues. We also worked with them collaboratively on drainage
'H.R. 3613, The California Fish and Wildlife Protection Act of 1990,
as reported by the full Interior Committee, July 25, 1990.
25
issues, which is another big federal issue. But that was their
big issue. They also worked on reclamation reform. Basically the
financial issues around the bureau program became their major
concern.
They were unhappy with the lack of interest that Miller
displayed in the summer of "90 in his fish and wildlife bill with
what had by then emerged as their big set of issues, which were
contract renewals. They had filed a major lawsuit, which was by
then before Judge [Larry] Karlton in Sacramento, and they had
gotten an injunction against the signing of renewal contracts in
the CVP, or at least a threatened injunction. I don't know
exactly what the sequence was. But they, for their own reasons,
were unhappy with this bill.
They had always been somewhat uncomfortable with our water
marketing approach, which essentially said, "We'll concede that
water's being sold too cheap to the growers of the Valley, but to
make water use in the state more efficient and to avoid
incremental environmental damage from building new projects, such
as the Peripheral Canal or Auburn Dam or whatever, we're going to
encourage water transfers." Their attitude was no, the way to do
this was to raise the price of water, encourage conservation
through a more direct sort of antagonistic approach, and had
worked hard to do that.
The NRDC and EOF Join Forces on Fish and Wildlife Protection,
Water Transfers, and Contract Renewals
Graff: We came together with them both equally unhappy or both unhappy
with Miller's approach, and wrote a memorandum to Charlene
Dougherty of Miller's staff, who had been for a while the main
proponent of the fish and wildlife bill, laying out our proposals
collectively for how both the pricing issues and the transfer
issues and the fish and wildlife issues could be rolled into one
package. I think Jensen has said laterin meetings I've been
with him recently- -that that joint EDF-NRDC package, written in
September of '90, essentially became the guts of the Bradley bill
in early '91. 1
'For more details on this letter, see pages 38, 47-49. Letter is in
the Appendix A.
26
Then another thing I did shortly after that, which I've
always been about as proud of as anything I've done in my
professional career: Miller had been saying for many years he was
going to have a hearing on water, and he had kind of avoided it,
for reasons I never quite understood. And then he scheduled a
hearing for late October of 1990. This was after it was clear
that the fish and wildlife bill [H.R. 3613] was going nowhere.
I'm not sure exactly what the sequence was with respect to the rec
reform controversy, which went right up until the very last day of
the 1989- '90 Congress, but he scheduled a hearing, asked me to
testify, and then about a week before the hearing actually was to
take place, canceled it.
Chall: Where was it to take place?
Graff: It was going to be in Washington. What I did, even though I had
barely begun writing the testimony, is I went ahead and wrote the
testimony anyway, despite the fact that I knew there was not going
to be a hearing, although I didn't say that. Then I circulated it
to everybody, a draft piece of testimony for a hearing that by
then I already knew was not to take place. So it was kind of a
nice opportunity to get out our point of view on what should be in
federal water policy reform legislation, when no one else was
testifying on anything different or contrary.
Chall: And yours was mainly- -
Graff: I basically laid out, what I think became, again, the basis for
the '91- '92 piece of legislation.
Chall: Transfers-
Graff: The basic idea was, the way you bring the urban interests in was
transfers, which Miller always had been uncomfortable with. His
philosophy was that you do what NRDC wanted, which is you increase
the price of water and power, require mandatory conservation
programs, and bar or limit contract renewals until environmental
problems had been addressed. But from our point of view, you
could use price increases to fund necessary environmental
measuresthat way, you also weren't just going to take the money
from taxpayers around the country to solve the problems. What you
give the water users, which made NRDC uncomfortable, but which we
perceived as absolutely necessary to make water transfers work,
was the certainty of contract renewal. That you would say to
them, "Okay, the deal is you get to renew your contracts, but at a
somewhat higher price, and you have to be willing to allow the
resale of the water we're going to give to you. This is actually
27
a good deal for you." The urban and business interests would buy
into that. And then, of course, you had to have fish and wildlife
protection.
So I think that was the sort of broad outlines of what
eventually became Miller-Bradley.
The Contract Renewal Issue: Congressman Miller's Dilemma re
Transfers
Chall: George Miller's bills in 1990 and 1991 do have water contract
limitations. [reading from Section 406, H.R. 3613, July 25, 1990]
"Prohibits the Secretary from entering into new water supply
contracts until one year after the commission submits its report
to Congress. Prohibits the Secretary from renewing water supply
contracts longer than three years until the requirements of this
Act are met and the State Water Resources Control Board has
established new water quality standards for the San Francisco Bay
and Delta."
Graff: Miller was working with NRDC I think more than with us, and his
basic idea was pursuing the idea in their lawsuit; you can't renew
your contracts until you've taken care of the environment. I
mean, that was the basic idea. But see, what happened was Miller
then cut a deal with the ag interests, where he didn't follow
through on this pointhe limited contract renewals , but he didn't
really prevent new contracts. Miller has this tendency--! guess
somebody's going to eventually hear this, so we might as well lay
it all out. He, I think, realizing the realities of politics in
the House and in the nation, would eventually work out
compromises, deals, with the Central Valley delegation that didn't
live up to the promise of the bills he introduced. And I'm sure
from his point of view, that is the only way you get legislation
moving. In this case, we were not paying major attention because
it was evident to us throughout that that legislation as a whole
was not going to pass Congress, because Bradley wasn't ready to
engage.
But he cut the deal I mentioned that both EOF and NRDC were
quite unhappy with in the summer of '90, which undercut some of
these good provisions that he had in his original legislation.
Something not that dissimilar happened in May of 1992, which I'm
jumping ahead to.
28
Chall: Well, I suppose he's trying to be--Miller has to be realistic.
Graff: Yes, but so were we. My view, and I've never really sat down kind
of after the fact with Congressman Miller or with John Lawrence,
Dan Beard, and others then on his staff, but I think some of the
things that ended up in the Miller-Bradley bill were quite
unpalatable to Miller, and they were different things than what
were unpalatable to various environmentalists in prior versions of
compromises that he put together. And we did our best during the
course of the two years that Miller-Bradley- -when various
versions, various authors' bills were prevalentto lay out for
Miller what we thought was the structure of a bill that would
work. Most notably, that it had to include a major water
marketing component that Miller himself I think has never been
comfortable with.
Miller's main idea, I think, was that these guys in the
Central Valley were ripping off the taxpayer and ripping off the
public, and the crucial part of the water marketing idea was they
were going to get a second way of doing that. Not only could they
get cheap water to grow crops, in many cases with big landholdings
that were beyond the original intent of the acreage limitation,
but they were going to get to resell that water at a profit.
Senator Bradley Takes the Lead on the CVPIA, 1991-1992
Graff: So I wrote some memos, which I'll give you, including one as early
as February of "92. This is again jumping forward, but what
really happened in '91 was Bradley introduced his bill [S. 484,
February 26] early, before Miller did, [H.R. 1306, March 6] and
then there were three hearings through 1991, all on the Bradley
bill in the Senate. One in Los Angeles, one in Sacramento, one in
Washington. And then work began on mark-up, informal mark-up, of
the Bradley bill in the fall of '91. During all that time, Miller
was holding back. I think Miller correctly perceived, based on
his experience in '90 and going all the way back to the rec reform
bill of '82, that the big problem was the Senategetting a bill
through the Senate, given the rules of the Senate and the ability
of one senator often to kill legislation all by himself. I think
Miller rightly perceived that the key was to get a bill out of the
Senate. So he encouraged Bradley to take the lead in trying to
get something through, get something out.
29
There were other complications. Johnston's big priority in
1991- '92 was an energy bill, and eventually Johnston and Miller
were going to have to negotiate an energy bill, and Johnston's
major interests in an energy bill were the oil companies and the
nuclear power industry, which were not exactly Miller's closest
political allies. [laughs] And I think Miller perceived that
somewhere along the line, if he was going to get the water bill he
wanted, he was going to have to give Johnston some of the energy
things that Johnston wanted. Miller always thought if he had
Bradley taking the lead on the water bill, maybe he wouldn't have
to give so much up on the energy side to get what he wanted on the
water side.
The forum for discussions among the interest groups and
really for legislative action for all of "91 and well into '92 was
the Senate, with the Bradley bill, all the Bradley hearings, with
Bradley calling negotiations in the late fall of "91, then
Johnston jumping into the fray in early '92 with his hearing and
then with his Johnston mark. It really wasn't until April, May,
after the Senate had acted, that Miller actively entered the fray,
although obviously they were paying attention.
But in February of '92, I wrote a memo to Beard and Lawrence,
after meeting with both of them separately, and realizing that the
sort of vision that we had, and we thought Bradley had, for
solving the problem, for getting broad based enough support to
pass a bill, was not what Miller would naturally gravitate
towards, because it included water marketing, because it included
contract renewals, and basically major concessions from his point
of view to the ag interests who had been his major adversaries for
his whole congressional career.
Chall: The ag interests certainly didn't approve of your contract renewal
proposals, even though you had them in there. You shortened--
Graff: Well, we shortened them, yes. They had to give some ground,
that's true. But basically our view was, you could fashion a
solution that would accommodate all the interests, and that's in
fact what I think the bill did. Now, I also thought, and again,
patting myself on the back, correctly, that ultimately it would be
very difficult for the ag interests to openly support any bill. I
can still recall a conversation I had in the hall outside the
Senate committee room, with Somach, when we went back there for
our negotiations in November of '91, where I said to him, "You
know, ultimately, if we get a bill here, it's going to be a bill
that you're not going to support, but it's going to have a lot
that you're going to want in it."
30
And that's the way it ultimately turned out, although [Vic]
Fazio, who played a critical role in the late going I think did in
fact get a lot of what he wanted in the final bill. Lou Cannon,
who I thought wrote the most perceptive analysis of the whole
thing at the end concluded- -he had been around a long time and
he's not exactly a radical- -
Chall: Did he write it for the Washington Post?
Graff: Well, he's got a syndicated column. He wrote it as a syndicated
column. His observation was that the ag interests got a whole
lot, and didn't realize what they got, or if they did, they were
clever enough to conceal it.
Chall: Well, they haven't liked it very well, I guess.
Graff: I don't know. They've sort of come to live with it, is my theory.
I view it as a pretty successful enterprise all around.
Anyway, we've jumped ahead.
David Yardas; Personal Background and Career Path with the
Environmental Defense Fund
Chall: Were we going to have David Yardas here today?
Graff: Yes. One of the reasons why I think it is particularly useful to
have him is that he was heavily engaged with Jensen personally and
with Bradley in the Nevada bill negotiations in '89- '90, and I
think that background and what I think came to be a very high
level of confidence that Jensen particularly placed in Yardas made
it possible for EOF, for Yardas himself, and for EOF and me to
become, I think, very--I don't know, influential, with
particularly the Bradley side of the struggle in '91 and '92. So
I think it's useful to have David's insights on how his
relationship with Jensen and Bradley 's office developed.
I don't know what level of detail you're going to want to go
into in future parts of this discussion, this interview, but David
was essentially the technical focal point of the environmental
community for purposes of negotiating all kinds of things, all the
various versions of the Bradley bill and the Johnston mark. There
were Senate negotiations that ended up aborting before they passed
the Seymour bill in March or April of '92.
31
Actually Yardas and Barry Nelson were our two people on the
ground in Washington for the most part in September of '92, when
the final bill was put together. David was calling me--I was
sitting here, he was thereand asking what did I think of this
proposal or that proposal or this compromise or that deal or
whatever.
So he was there, even more so than Barry, who I think was
most responsible for the political element. David was the sort of
nuts-and-bolts part of it. So I think he could be helpful in
giving you some of that element .
Chall: I think it would be useful to get into some of the technical ends,
the changes. For example, in retracing this processthe Katz
bills, your and Willey's reports, and so on. It appears that the
debate on water marketing has been going on for a very, very long
time. But there are some really serious problems involved in
water marketing. And problems that make a layman like me wonder
about them, and also, I'm sure, the rest of you to some extent.
So the question that I have is in what ways did water marketing
come into the bills?
Graff: I think David would be helpful there, too. I can give you sort of
the grand descriptions. Bradley had a set of water marketing
provisions in his original bill. And David has a complete file of
bills from A to Z with all kinds of notations and so on.
Chall: I think I have Bradley 's original bill.
Graff: I can't remember the number- -484, wasn't it?
Chall: Yes.
fl
[David Yardas joins the interview]
Chall: I wanted to know something about your background which brought you
to EOF, and when.
Yardas: Well, let's see. My undergraduate work was in the area of
economics from the University of California at Davis, ironically,
at that time, focusing on international relations issues rather
than environmental issues. I went back to Washington, D.C., to
pursue that as a career, and for a variety of reasons, started
doing environmental work instead- -friends that I had, the
realities of an eight-hour work day and so on, and feeling like I
32
needed to be more stimulated by what I was doing. Environmental
stuff had always been a passion but not a vocation.
So I started looking for other work, and obtained a slot as a
research assistant at a place called Resources for the Future,
which is a kind of a think tank, a natural resources policy think
tank back in D.C. Spent a couple of years there, and decided that
I ought to go back to graduate school to fill out some of the gaps
on the environmental policy end that I didn't catch as an
undergrad since I wasn't really focused on them, and came back to
Berkeley and did graduate work at the Energy and Resources Group
at Cal. That's an interdisciplinary graduate group, and my
emphasis was on surface water hydrology. So that was my main area
of interest.
Chall: With whom did you work on that?
Yardas: Somewhat independently. My major professor was John Harte, and
actuallythis will get to answering the questionbut I guess the
main person I worked with there was Ed Kahn, who is a scientist up
at the Lawrence Berkeley Laboratories. He works primarily in the
area of electric utilities and public utility regulation. I did a
thesis that looked at some electric utility issues as they
interfaced with water supply issues. Because of that, I ended up
going off on a tangent and worked for a private energy,
alternative energy company for several years after I finished
graduate work, and in that capacity began to use the ELFIN model,
standing for Electric Financial.
ELFIN is a model that was developed and continues to be
supported by EDF, and it's for looking at kind of production
costs, simulations of utility systems, alternative expansion
paths, least-cost planning, things like that. That work, my work
with ELFIN, which was in kind of the early days of the real public
work with that model, put me in touch with the author of the
program here, a fellow by the name of Dan Kirshner. I expressed
at various points, I think, as time went on, my frustration with
the private sector and what was going on with the firm I was
working with--
Chall: What was the name of that firm?
It
Yardas: At that time, it was called the Independent Power Corporation,
subsequently split into two firms, and it was partly the
atmosphere around that split that was frustrating to me. But more
to the point, the idea of working for private clients was just not
as compelling to me.
33
Anyway, my work with Dan and with that model, and my
background with the water stuff, ended up being kind of a perfect
fit when Zach Willey in 1986 received some Ford Foundation support
for a new initiative that he called the Rural Economy and
Environment Program, KEEP. Ultimately Dan Kirshner let me know
that there was a possibility that there would be some support for
a research analyst or assistant-type position in this program that
Zach was launching, and he (Dan) was also looking for some part-
time support on the ELFIN work. So I eventually came to EOF in
about early '86, split half and half between the energy and KEEP
or water programs, and actually began work on the Pyramid Lake,
Nevada, controversy in 1986, as sort of one of the first cases
that we looked at under that new initiative.
The Pyramid Lake Project:
Legislation
Its Relevance to the CVPIA
Chall: Do you want to explain that Pyramid Lake project, what it was you
did and what you learned?
Yardas: Yes, boy!
Chall: Because I understand that it carries through--
Yardas: Yes. Well, let's see. I guess in a nutshellit ' s hard, because
I'm still hopelessly enmeshed in that puzzle, it's hard to sort of
do it in a nutshell.
Chall: Well, make it a broad nutshell.
Yardas: Yes. There's a couple of themes that are sort of really relevant,
I think, to the CVPIA context. One that is in my view extremely
important and a theme that I think underlies a lot of what
happened has to do with personal relationships. My work on Nevada
just, I think, fortuitously happened to come about at a time when
Senator [Harry] Reid, then a newly elected senator from Nevada,
wanted to try and do something with the water issues in the Reno-
Sparks area. Senator Reid, a Democrat of Nevada. I guess he came
in in 1987; that is when he first became a senator. I think
that's right. I can check that for you.
In fact, I'm now involved in a structured, facilitated
negotiation up there that commenced a couple of weeks ago, and he
came and gave kind of the opening keynote or whatever, and one of
34
Chall:
Yardas:
the stories he told was how on election night when he was first
elected to the Senate, he was asked what his top priority was. He
said, "The water problems in western Nevada," or northern Nevada,
to him. He went on to clarify this time that that hasn't changed,
except that now it includes southern Nevada and Las Vegas ' s
problems as well as northern Nevada.
But he had that on his screen; the evolution of litigation in
that controversy. Things had kind of ripened, I guess, and we
came on the scene with some new ideas about water marketing, about
the importance of environmental restoration, things of that sort,
pieces that had been missing from the puzzle. Substantively, I
think, the main thing I started focusing on was how to get out of
what was being characterized as a conflict between two
environmental resources, the Pyramid Lake resource and the
wetlands of the Lahontan Valley, including the Stillwater National
Wildlife Refuge and surrounding wetlands.
Their needs in terms of water were being played off against
each other by a federal reclamation project community called the
Newlands Project. We came in and basically started using ideas of
water marketing and economic incentives and things like that.
Where were you getting those ideas from?
It was really an outgrowth, I think originally, of the MWD-IID
conservation investments work, the idea that the urban sector
could come in and invest in conservation in an agricultural
project and reap the benefits of that conserved water. So it was
that same theory. Reno and Sparks as cities could come in, use
their money rather than federal money, to go in and buy conserved
water in the Newlands Project. In fact, Derby Dam- -which diverts
water out of the Truckee River over to the project through the
Truckee Canal--is Reclamation contract number one. It's the very
first contract that the Reclamation Service initiated in 1903.
It's the first project in that sense. So it's a very old, very
antiquated project.
So it was kind of using the MWD-IID project as a model, based
primarily on Zach's work, because I was still pretty new at this
point, that kind of pointed us in that direction, and I think
really got the debate going about another way of looking at things
out there.
Fast- forwarding a bit, at near the same time back in
Washington- -did you talk at all about Bradley and Jensen?
Graff: Yes.
35
Yardas: That's one Tom was kind of shopping around for, for sort of some
interesting things consistent with their agenda, and the Truckee-
Carson was known as a reclamation project, was within the
jurisdiction of the energy committee, and very much on the screen
as a continuing source of controversy. And when he came out and
toured he thought that they could actually do a lot in terms of
the new West theme, or the restoration, and urban sector water
marketing, and efficiency in agriculture and all that kind of
stuff.
So it was really the evolution and timing of that work as it
coincided with the Bradley- Jensen axis, I guess, and my work in
particular with Tom during that period that created a real
relationship. He came to, I guess, trust my work in terms of the
analysis I could give him, and the background. He would test
stuff off me, send me stuff for reaction, whatever. Started to
use me in a way as kind of an adjunct staff person. I don't think
I'm the only person he used that way. I think he was really good
and able as a congressional staffer in part because he was very
good at mobilizing other people to do a lot of work that would
feed into him and that he could use to advance his interests.
Chall: This goes back to 1986.
Yardas: Well, that's when I started. I started in '86 with that project.
I think things really started moving around '88 or so, and it was
1990, November of 1990, when Public Law 101-6 18--that ' s the
Truckee-Carson-Pyramid Lake Water Rights Settlement Actpassed
Congress. 1 So it was really the '89 and '90 period, two years
leading up to the passage of that act, where I would say that that
was the heavy activity.
Chall: What in the act in terms of water transfers has been successfully
carried through? It's one thing to get them successfully through
the Congress, it's another to find that what you had projected is
feasible.
Yardas: Yes. Hence the negotiation that I am once again involved in.
Chall: Is it successful?
Yardas: Yes, I think it is successful in the same way that the Central
Valley Project Improvement Act is successful, in that it changed
'The Fallen Pointe-Shoshone and Truckee-Carson-Pyramid Lake Water
Rights Settlement Act of 1990, P.L. 101-618, 104 Stat. 3289, November 16,
1990.
36
Chall:
Yardas :
the nature of the debate and it changed the terms of trade. Now,
whether it brought lasting and permanent protection or restoration
to the resources that we're most interested in, I can't say that
yet. But we're no longer headed in this direction, we're headed
in that direction [points in two directions].
The implementation is a huge challenge. I don't think I
could stand to be involved in another bill in Congress, because I
couldn't stand to be involved in the implementation effort, at
least not at the same time. I would have to drop something. But
that act, and if you want more background on this, I can give you
some writings and literature, and also we have--a map would help,
whatever. I didn't really come prepared to do that.
Did you trade land?
rights?
Did they buy land in order to get water
Yes, there's an active water rights acquisition program going on
within the Newlands Project now, which is essentially buying up
irrigation land and water rights and moving the associated water
from farm use over as an endowment to the wetlands. The idea is
to basically shrink the agricultural base. The Newlands Project
sits, in a sense, in between Pyramid Lake and the wetlands, the
Lahontan Valley wetlands. There's two rivers, the Truckee and the
Carson River. Water from the Truckee is diverted over to a
storage reservoir on the Carson, and that is fed down to the
project.
So if you try and conserve water in the project in order to
keep water in the Truckee to benefit Pyramid Lake, which is the
terminus of that river system, then that has a potential for
impacting the downstream wetlands, wetlands which are downstream
of the project and have for many, many years relied on the kind of
excess or slop of irrigation as their supply. And what the
acquisition program that was authorized under the act tries to do
is to shrink the agricultural base and to reallocate a portion of
that to the wetlands, to give them a permanent endowment that gets
them out of the alleged trade-off between the health of the lake
and the health of the wetlands.
Agriculture, Wetlands, Indian Tribal Fisheries
Chall: And what happened to what's known as third-party interests?
37
Yardas :
Chall:
Yardas:
Chall:
Yardas:
They're alive and well, very much a subject of debate, part of the
reason for the facilitated negotiations that are currently going
on. It is not without impact. I mean, there's a whole number of
things that need to be discussed about third-party impacts,
including third-party benefits. The benefits of being a
beneficiary of the federal reclamation trough for the last eighty
years are significant, and that needs to get taken into account
somewhere .
But the other important piece of that whole settlement
there's a number of them. There are several tribal settlements,
there's two Indian tribes involved. There are interstate
allocations, that's between Nevada and California, because both
the Carson and the Truckee are interstate rivers. But perhaps the
real linchpin is a water settlement between the Pyramid Lake
Indian tribe and the water purveyor in the Reno-Sparks area that
will allow for additional drought support for the Reno-Sparks
area, and essentially the continued development of that area
through a water banking program that also provides substantial
benefits to the Pyramid Lake fishery, to the endangered fish that
reside in Pyramid Lake.
Which the Indians use? Are the Indians the fishermen?
Well, yes. There's two fish, two primary fish. One is called the
endangered cui-ui, and the threatened Lahontan cutthroat trout.
The cui-ui are the namesake of the lake and the tribe
historically. They are not a commercial fish; they're kind of a
slow-moving, long-lived, prehistoric-looking sucker-type of fish,
but very much entwined in tribal history and culture. Pyramid
Lake was called "Cui-ui Lake" by the Pyramid Lake tribe, which was
known as "kuyuidokado, " or cui-ui eaters. So that's very much a
focus of their kind of culture and subsistence and history and
whatever.
I see. So you had to protect their water rights, too, for
fishing.
Well, it's not so much their fishing as the habitat of the lake to
preserve the fish itself. The fish are not currentthey don't
fish the cui-ui at this point.
The Lahontan cutthroat trout are of commercial interest
potentially, certainly of great recreational interest. The
original strain of that species that was indigenous to Pyramid
Lake went extinct in about 1940 due to the drop of lake levels
resultingsort of like the Mono Lake situationresulting from
38
diversions of water upstream, in this case to the Newlands
Project. So one of the long-term interests of the tribe is to
sustain what is now a reintroduced population of Lahontan
cutthroat trout in the lake for angling and commercial purposes,
There's a real economic potential there.
Becoming Involved in California Water Issues: Drafting the
Yardas-Garrison Letter
Chall: I see. So that's the source of some of the work that you've done.
And then that brought you into working with Jensen and Bradley on
the CVPIA, the early bills. When did you start working with the
Congress on what we now call the CVPIA?
Yardas: I started to get out of my energy work and moved over into, kind
of became full-time water back, I forget exactly when, maybe '89
or so. And as part of that move, I started to pick up some of the
California work, or get more involved. The San Luis Drain issue,
I think, was an early piece. And in that capacity, I was starting
to get involved in some of the discussions that were going on at
that time pretty much informally, I think, although there was a
whole separate thing going on with Miller and his fish and
wildlife bills. I was more kind of just reading those and
reacting to them than having any dialogue with his staff at that
point in time.
But I guess the main thing on the Truckee-Carson is that as a
consequence of having worked that bill, the relationship with
Jensen was key in large part because of the role he played in the
CVPIA. But also my work on Truckee-Carson gave me introductions
and substantive connection with a lot of people on Capitol Hill,
with the same people who would ultimately become involved in the
CVPIA, and so I think again the relationship thing was pretty
important there.
So I don't know. But I guess the first real substantivedid
you talk about the letter with NRDC?
Graff: Yes.
Yardas: So I think the first real substantive entry for me in the start of
the CVPIA from my point of view was this joint letter with NRDC.
Chall: Who worked out-- Did the two of you work out the joint letter?
39
Yardas: It was pretty much all of us, I think. It was signed by myself
and Karen [Garrison], but I know that on their side, it was Sammy
Yassa, Hal [Hamilton] Candee, and Karen at least. I know here
[EDF] that, since it had implications for Kesterson and San Luis
Drain and all that, John Krautkraemer, Terry Young, myself, and
Tom I think were probably the main people involved. Am I
forgetting somebody?
Graff: No, that's right. Later on, as I guess we'll get to, David took a
leave of absence in the first half of 1991, and Chelsea Congdon
played a role in the CVPIA itself. But I think she was not yet
aboard as of September of '90. My recollection of that, and it's
a little dim, is that David and Karen really were the ones that
were talking to each other in terms of the relations between EDF
and NRDC at the time. I remember reviewing the letter, and I'm
sure I had some com
