May 1, 2009

Endangered Species Act spin

By Damien M. Schiff Senior Attorney

NRDC's Barry Nelson has a lengthy post on the California water shortage and suggests that "although pumping has been reduced modestly to protect endangered fish, the pumps have not been turned off, and it is drought, not environmental restrictions, that are reducing water deliveries." Of course, this is not true — the drought is both natural and regulatory. As Governor Schwarzenegger proclaimed in February, the state-wide water emergency is in part due to the December 2008 biological opinion that restricted water exports on behalf of the delta smelt.

Nelson points to California Department of Water Resources Director Lester Snow's recent statement about the marginal benefit to water supplies that would accompany the lifting of ESA restrictions and notes that farmers who have been affected by a reduced allocation can participate in water marketing agreements.  We find Snow's assertion to be dubious — if only a 5-10% increase in allocation were at stake, we doubt the state's numerous water districts would devote so much of their time and money towards litigation fighting the ESA restrictions.  But just as important as the current restrictions that are occurring is the uncertainty that accompanies the biological opinion. This is the crucial point that Nelson misses.

Farmers own businesses, so not only must they deal with the present, they must plan for the future.  The delta smelt biological opinion is a severe restraint on farmers' abilities to know what their water supply will be, if any. When the U.S. Fish and Wildlife Service says that the first priority is "to prevent delta smelt from becoming entrained into the south delta where they can become entrained at the facilities or succumb to high water temperatures later in the season," that makes the future prospect of water exports that much more uncertain.  Considering that further water restrictions will occur if a single larval delta smelt is salvaged, relief from ESA restrictions is an understandable desire.

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