June 5, 2009

the Endangered Species Act: the de facto authority on California's water?

By Damien M. Schiff Senior Attorney

There's plenty of coverage on the web of NMFS's new biological opinion on how California state and federal water projects affect several marine species. Aquafornia has compiled a wide variety of analyses, while Legal Planet's Holly Doremus has a brief summary on the biop and what people are saying about it.

The biological opinion seems to confirm the odd state of control of California's water supply. One would think that, as managers of the State Water Project and federal Central Valley Project, the California Department of Water Resources and the U.S. Bureau of Reclamation would be the arbiters of the state's water flow. But this is not so: the U.S. Fish and Wildlife Service and the National Marine Fisheries Service together have become the de facto authority on California's water. These federal agencies have used regulatory creep to jeopardize the livelihoods of thousands throughout the California. Their weapon is the Endangered Species Act.

California Governor Arnold Schwarzenegger got it partly right when he said (via the S.F. Chronicle) that "[t]his federal biological opinion puts fish above the needs of millions of Californians and the health and security of the world's eighth-largest economy. The piling on of one federal court decision after another in a species-by-species approach is killing our economy and undermining the integrity of the Endangered Species Act."

At this point, this dire situation is less about federal court decisions and more about FWS and NMFS inserting themselves into each and every aspect of California water management. Reclamation is aware of what this means. From the Sacramento Bee:

"You're going to see less reliable water as it relates to farming in the Central Valley, and it will become more difficult to find replacement water for urban growth," said Donald Glaser, the Bureau of Reclamation's regional director.

What is left unsaid is how the Bureau, DWR, and the rest of California are now subservient to the ESA wishes of the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

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