March 22, 2011

Despite the wet weather, California's regulatory drought continues

By Despite the wet weather, California's regulatory drought continues

Author: Brandon Middleton

After years of less than normal precipitation, California is perhaps on its way to a wet water year.  The recent rain throughout the state has led many to believe that the state is no longer in a drought.  But while drought conditions may have eased in terms of greater precipitation, California's regulatory drought is far from over.

In fact, the Endangered Species Act appears set to rear its ugly head once again, with the Obama administration planning to implement severe water cutbacks beginning April 1.  So instead of fully enjoying the benefits of this past month's storms, it looks like folks in the San Joaquin Valley and Southern California may have to sit back and watch water flow out to sea for the purported benefit of salmon.

Much of California's short-term water situation depends on what will happen over the next several days at the federal courthouse in Fresno.  There, in The Consolidated Salmon Cases, plaintiffs San Luis & Delta-Mendota Water Authority, Westlands Water District, State Water Contractors, Metropolitan Water District of Southern California, Kern County Water Agency, and the Coalition for a Sustainable Delta are seeking a temporary restraining order (TRO) to prevent a particular aspect of the National Marine Fisheries Service's salmonid biological opinion from being implemented.

According to the plaintiffs, beginning on April 1, "export restrictions will prevent Plaintiffs' member agencies from taking advantage of the rare opportunity presented this year to fill depleted surface water reservoirs, aquifers, and other reserves to prepare for future dry water years."  The plaintiffs state further that the restrictions on water exports "are not needed to protect salmonids this spring, while their implementation would result in significant water losses to agricultural, municipal and other water users across the State."

Both the Obama administration and environmental groups have opposed the plaintiffs' TRO request, with the Natural Resources Defense Council claiming in particular that a TRO is unwarranted "in light of the substantial amount of water Plaintiffs will receive this year," and because the restrictions "are necessary to avoid jeopardy to listed salmon and steelhead and destruction of designated critical habitat."

The hearing on the plaintiffs' TRO request and other potential relief from the NMFS salmonid biological opinion begins tomorrow in Fresno before Judge Oliver W. Wanger.  If anything, the hearing serves as a reminder that natural conditions can only do so much to ameliorate California's water issues, and that the Endangered Species Act and the regulatory drought may be with us for years to come.

[Disclaimer: While Pacific Legal Foundation previously filed an amicus curiae brief in support of the plaintiffs in the The Consolidated Salmon Cases, PLF does not represent any of the plaintiffs in this challenge to the NMFS salmonid biological opinion and is not participating in the hearings discussed above.  PLF attorneys do, however, represent a group of almond and pistachio growers in a challenge to the U.S. Fish and Wildlife Service's delta smelt biological opinion.  The hearings beginning tomorrow concern only the salmonid biological opinion and not the delta smelt biological opinion, for which there is a temporary settlement agreement.]

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