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People or fish: Who gets water under ESA?

M. David Stirling Guest comment May 7, 2009

The challenges of moving water through the Sacramento-San Joaquin River Delta to the Central Valley and beyond are substantial and complicated.

They pit good people in California's north against good people in the central and south of the state. They set farmers in one region against farmers in other areas, fisherman against farmers, rural communities against urban dwellers and environmentalists against all of the above.

Long-term fixes for California's persistent water conflicts must address the expensive infrastructure and political challenges involved.

One hefty player in this ongoing water conundrum receives little attention, yet is responsible for a significant share of the current economic and social impacts felt in Central Valley communities and reduced Delta water supplies to 25 million Bay Area and Southern California households. It is the Endangered Species Act, the "species-first, people-last" federal statute routinely enforced by environmentalist lawsuits.

In the first U.S. Supreme Court case testing the ESA's scope and authority (Tennessee Valley Authority v. Hill, 1978), the court majority declared that "(t)he plain intent of Congress in enacting (the ESA) was to halt and reverse the trend toward species extinction, whatever the cost."

Although under our system of government no public program paid for by taxpayer dollars is impervious to debate about its costs, this court-created fiction about the ESA continues as judicial precedent. The result has been twofold: One, the lower federal courts nearly always treat the ESA as a super statute that elevates species preservation above all other socially beneficial public interests; and two, the incessant ESA-based lawsuits filed by environmentalist organizations are nearly always successful (which in turn allows them to collect their attorney fees from the taxpayers.)

Despite years of work by federal and state wildlife agencies to determine the causes of and reverse the Delta smelt's decline - between 1973 and 1993, when it was listed as "threatened" under the ESA, the tiny fish's population dropped ten-fold - little success has been achieved.

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 state and federal water project pumps near Tracy that propel 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 groups challenged the opinion in federal court, targeting the pumps as the prime culprit in the smelt's decline.

Mindful of the ESA's mandate to preserve listed species "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."

During 2009, so much public 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 diminished precipitation, according to the state Department of Water Resources website as of March 20, rainfall into the San Joaquin River's and the Sacramento River's northern California watersheds that serve the state and federal water projects were, respectively, exactly normal at 30 inches and almost normal at 36.7 inches of a normal 40 inches.

Yet, instead of this water being released to the pumps for export to 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 valley towns, and softened the blow of water rationing in other areas. Since March 15, hundreds of thousands of acre feet of Delta water that could have been used by people have continued to be wasted to the ocean - all in an effort to preserve the Delta smelt.

It has been said that the ESA 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 over 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 (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 25 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 when the drought passes, the ESA will still impose heavy burdens on people.

M. David Stirling is vice president of Pacific Legal Foundation, www.pacificlegal.org. He is author of the book, "Green Gone Wild - Elevating Nature above Human Rights."
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