Opinion Editorial

Blame 'shortage' on misguided environmentalists

By M. David Stirling
posted in the Sacramento Bee
June 14, 2009

M. David Stirling PLF Of Counsel

The question now arises: Is the record-setting, federally mandated reduction of Sacramento-San Joaquin Delta water exports to the Bay Area, the Central Valley and as far south as San Diego the result of a third year of diminished precipitation in Northern California, or is it the result of political or man-made factors?

Even though the state has dealt with drought conditions for three years running, Californians are experiencing a water shortage created in large part by a powerful federal statute known as the Endangered Species Act.

For more than 30 years, the federal Central Valley Project and California's State Water Project have transported water from Northern California through the Delta to water users west and south of the Delta. At the south end of the Delta, near the community of Tracy, these projects operate large pumping stations that propel the water on its long journey.

More than 23 million Californians – two-thirds of the state's population – and tens of thousands of industrial and business users consume 70 percent of the transported water, while 30 percent goes to irrigate more than a million acres of farmland that make California the No. 1 food producer in the country. The projects – the world's largest water storage and delivery system – also generate hydroelectric power, improve water quality in the Delta, control flood waters, provide recreation and enhance fish and wildlife.

Considering the enormity of the critical tasks the water projects have performed for the state's population, which has increased by 66 percent over more than three decades, it is remarkable that there have been no notable malfunctions or lapses in performance. So reliable has been the projects' delivery of water to California households, businesses and agriculture over those years that many recipients just assume that "water comes from the faucet."

And the state's periodic droughts have not significantly reduced the projects' water deliveries. For the most part, voluntary water conservation practices have been a sufficient response to diminished water supplies. Then what is so different about the current water shortage that it is having such serious economic and social impacts on agriculture-based Central Valley communities, as well as reduced Delta water deliveries to households and businesses in Bay Area and Southern California communities?

For the past 36 years, some environmentalists or hardcore "greens" have used the heavy hand of the 1973 federal Endangered Species Act to elevate plant and wildlife species above the economic, social and even physical needs and endeavors of people.

This began in earnest with the first U.S. Supreme Court case testing the Endangered Species Act's scope and authority (Tennessee Valley Authority v. Hill, 1978). The court declared that by enacting the ESA Congress intended to preserve listed species at "whatever the cost."

While it is curiously troubling that the Supreme Court viewed a law like the Endangered Species Act as beyond challenge on costs to taxpayers, this court-created fiction about the inviolability of the ESA continues as judicial precedent. As a result, the lower federal courts regard the ESA as a "super statute," enabling species preservation to trump human interests and endeavors in nearly all circumstances.

The vast majority of Americans know little, if anything, about this powerful "species-first, people-last" statute. While many relate to endearing images of charismatic species like the grizzly bear, the gray wolf mom with her pups and the bald eagle, few understand that the ESA also puts people's interests below those of a maggot like the Delhi sands flower-loving fly, which delayed for more than a year the construction of a much-needed hospital in an economically depressed California community; an insect like the North Valley longhorn elderberry beetle, which enabled the 1997 deadly levee break on the Feather River; and a tiny fish like the Delta smelt.

The Delta smelt is a fragile fish about the size of an adult's little finger. Despite years of work by federal and state wildlife agencies to determine the causes of, and reverse, the Delta smelt's decline, little success has been achieved. Between 1973 and 1993, when the smelt was listed as "threatened" under the ESA, the tiny fish's population dropped tenfold. And now the Delta smelt's numbers remain precariously low. In a 2005 biological opinion, the U.S. Fish and Wildlife Service found several contributing factors in the Delta smelt's long decline, including the projects' pumps near Tracy that transport Delta water south. But the opinion also found that the pumps, while taking some smelt, were not killing so many as to cause the smelt's extinction.

As expected, the Natural Resources Defense Council and other environmental organizations challenged the Fish and Wildlife Service opinion in federal court, charging that the pumps were the prime culprit in the smelt's decline.

Mindful of the ESA's mandate to preserve listed species at "whatever the costs," in late 2007, federal district Judge Oliver Wanger of Fresno ordered the state and federal pumps shut off whenever young smelt were in the vicinity. This ESA-driven ruling reduced Delta water exports through the pumps by 30 percent during 2008, caused an estimated hit to the state's economy of $300 million, and, according to the California Water Agencies, amounted to "the most drastic cut ever to California water … the biggest impact anywhere, nationwide."

This year, so much media attention has been focused on "the drought" that the ESA's heavy, ongoing impact has been obscured. While it is undeniable that the state is in the third year of a water shortage, according to the state Department of Water Resources Web site as of March 20, rain and melting snow flowing into the San Joaquin and the Sacramento rivers' watersheds were nearly normal.

Yet, instead of this water being released to the pumps for export for people's use, according to the San Luis and Delta-Mendota Water Authority, as of March 15, 255,802 acre-feet – beyond that required to prevent excessive salt-water intrusion from San Francisco Bay – were allowed to flow to the ocean to comply with the ESA-mandated Delta smelt ruling. This wasted water could have put 85,000 acres of farmland back into production, reduced the 40 percent unemployment rate in some Central Valley towns and softened the blow of water rationing in other areas. Since March, thousands of acre-feet of Delta water that could have been used by people below the pumps have continued to be wasted to the ocean – all in an effort to preserve the Delta smelt.

It has been accurately stated that the Endangered Species Act is unforgiving when a species is about to vanish. Yet that sentiment fails to recognize the need to balance preservation of species against human needs. On the one hand, the frail Delta smelt species has been in decline for more than 35 years and will likely become extinct from several causes no matter how much effort or funds are expended to preserve it. One factor alone, 260 invasive, or nonnative, species – some that prey directly on the Delta smelt and others that voraciously consume its food source – have proliferated in the Delta for several decades, and cannot be eliminated without killing other protected species and causing other environmental harms.

On the other hand, the ESA-mandated withholding of water to more than 23 million people for drinking, household and business purposes, for irrigating much of California's annual $32 billion agricultural industry and the estimated loss of 80,000 Central Valley agriculture-related livelihoods, will lead to very harsh health, economic and social consequences.

And if these consequences were not dire enough, the National Marine Fisheries Service ruled this month that an additional 5 percent to 7 percent of Delta water exportable by the projects' pumps to people's use must be cut so that salmon and steelhead have better access to their spawning waters above the Nimbus, Folsom, Shasta and New Melones dams.

No one feels good about any species declining toward extinction. But in emergency situations such as hurricanes, floods, wildfires and yes, droughts, the needs and interests of people simply must take priority. The current California drought will end, but the draconian burdens imposed on people by the Endangered Species Act will continue.

David Stirling is Of Counsel with Pacific Legal Foundation, a public interest legal organization that defends private property rights and advocates for balanced environmental regulation. PLF (www.pacificlegal.org) is representing several Central Valley farmers in a legal challenge to the ESA-mandated pumping cutbacks. Stirling is author of the book "Green Gone Wild – Elevating Nature Above Human Rights."