May 26, 2009

the delta smelt's dirty little secret

By Damien M. Schiff Senior Attorney

The delta smelt – a tiny fish the size of a small child’s hand – has a stranglehold on California’s water supply. Restrictions put in place on behalf of the smelt have resulted in drastic water shortages for farmers and municipalities as well as a further loss of jobs in the already economically depressed Central Valley. Coupled with the fact that no one is certain whether more water for fish (and less for humans) will actually help the delta smelt, it is little wonder why few understand the fairness of this situation.

To be sure, over-zealous environmental organizations may be blamed for the fish-before-people mantra that persists in today’s political climate. But the reality is that the current water restrictions are the result of a 2008 Endangered Species Act decision by the U.S. Fish and Wildlife Service. This federal decision was issued on behalf of the delta smelt, a threatened species; the decision has significantly curtailed the ability of California’s two main water projects to export much-needed water from the Sacramento-San Joaquin Delta southward.

Many groups have protested against this absurdity, and justifiably so. Farm workers marched across the Central Valley, pointing to the vast unemployment brought on by the water restrictions. Governor Schwarzenegger has strongly urged the Fish and Wildlife Service to reconsider its draconian enforcement of the ESA. Several irrigation districts have filed lawsuits in order for the Service’s decision to be overturned. The message behind these efforts is clear: taking water from the Central Valley and giving it to the delta smelt is unreasonable and unlawful.

And yet, such efforts have left unquestioned a key assumption that underlies the delta smelt’s regulatory burden. Leaving aside questions of fairness for the moment, one must also ask: does the Fish and Wildlife Service even have the authority to act on behalf of the smelt?

The answer is no – the delta smelt’s dirty little secret is that it exists only in California, has no commercial value, and that, consequently, it may not be used by the Fish and Wildlife Service as a reason to restrict water deliveries. Politicians and bureaucrats may not want to hear this, but without a connection to interstate commerce, the federal government has no authority under the U.S. Constitution to mandate smelt-based restrictions.

So while the fairness (or lack thereof) of this regulatory drought is an important topic, so too is the authority of the federal government to even create this untenable situation in the first place. It’s one thing to place the value of the delta smelt above that of farmers, laborers, and the entire economic viability of the Central Valley. It’s an even greater travesty when that is done contrary to law.

That is why, last week, Pacific Legal Foundation filed a lawsuit on behalf of small and independent farms to challenge the cutbacks in water deliveries that they have incurred. We believe the restrictions are an invalid exercise of federal authority under the U.S. Constitution. Our clients are almond and pistachio growers and, like so many other farmers in the Central Valley, they play a vital role in California’s economy. But by acting in disregard of the Constitution, the Fish and Wildlife Service has jeopardized their livelihoods and that of future generations. As president of his family farming company Stewart & Jasper Orchards, Jim Jasper is particularly concerned. “I’ve always had aspirations that we would be able to continue with this business for generations to come and provide food and jobs for families throughout California,” he said. “But with what is happening in the Central Valley today, these dreams probably will not come true.”

It no doubt will be a long and difficult fight Mr. Jasper and our other clients. But their message is one that must be heard in Pacific Legal Foundation’s and the rest of the country’s fight against Big Government: the guiding document of each and every federal agency is the Constitution, and before restricting the delivery of water or imposing any other regulatory burden, they are obligated to ensure that they have the constitutional authority to do so.

The Fish and Wildlife Service’s decision to restrict water deliveries gave short shrift to the obligation to follow the Constitution. Given that the delta smelt has no connection to interstate commerce, the Service should have refrained from analyzing the smelt’s tenuous relationship with the California’s water system.

Instead, the Service turned the tables and determined that it had to reduce water exports in order to protect the smelt. As a result, our clients and thousands of others in California have lost their water. These cutbacks are far from reasonable, as the 40% unemployment that persists throughout Central Valley towns demonstrates. To add insult to injury, they are also unconstitutional.

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