June 4, 2009

U.S. Fish and Wildlife Service proves Governor Schwarzenegger wrong on the delta smelt

By Damien M. Schiff Senior Attorney

Last week we reported on the U.S. District Court's decision to require the U.S. Fish and Wildlife Service to better justify delta smelt-based water restrictions. The Court also ruled that before the Service decides to impose unnecessarily restrictive water cutbacks, it must first consider the harm the restrictions are likely to cause humans.

Given the over 250,000 acre-feet of water at stake and the dire status of the Central Valley economy, the Court was particularly concerned over the economic and environmental impacts of the Service's future delta smelt decisions. The Court listed several likely (and unfortunately harmful) results of the Service's delta smelt regime: loss of water supplies, damage to permanent crops, crop loss or reduction in crop productivity, job losses, reductions in public school enrollment, limitations on public services, impaired ability to reduce the toxic effects of salt and other minerals in the soil, groundwater overdraft, increased energy consumption, and land fallowing that causes air quality problems.

The Court's decision (available here) was a small but important victory for sanity in the otherwise insane world of environmental litigation, as it recognized that the human side of the delta smelt story cannot simply be ignored. Governor Schwarzenegger rightly remarked that the decision seemed "to provide additional balance to the operation of the state and federal water projects in the Delta." (hat tip: News Blaze)

Sadly, the U.S. Fish and Wildlife Service has proven the Governor wrong — not only has the Service decided to maintain the most severe water export restrictions, it has virtually ignored the district court's concern over the economic and environmental impacts of delta smelt restrictions. The Service's discussion of Potential Harms to Humans, the Community, and the Environment can be found at the bottom of its June 2 water flow decision (available here).  This extremely brief analysis on the human effects of the Service's decision is, quite simply, an insult to the people of the Central Valley:

The Court also enjoined the Service from setting “unnecessarily restrictive” OMR flow targets “unless and until FWS first considers the harm that these decisions and actions are likely to cause humans, the community, and the environment . . . .” PI Order at 48-49. The Court clarified that the Service is not required to “independently evaluate and/or weigh the harms to humans, the community, and the environment versus any potential harm to the species.” PI Order at 49. Because the Service has concluded that the OMR flow target set by this Decision is not “unnecessarily restrictive,” it is not required by the Court’s order to consider harms to humans, the community, and the environment here.

Nonetheless, the Service acknowledges that there may be socio-economic impacts in the CVP service area in the event that operating to the OMR flow target results in less exports than may otherwise occur in this third year of drought. As discussed above, however, the Service has concluded that this OMR flow target is necessary for compliance with the Endangered Species Act. In considering the potential harms identified by the Court, the Service has not conducted any economic or “cost/benefit” analysis of the effects of these OMR target flows.

The message behind this decision is that the U.S. Fish and Wildlife Service finds it extremely difficult to think of anyone or anything besides the delta smelt. It is a perfect example of how truly draconian the Endangered Species Act is. The harm that has accompanied the lack of water in the Central Valley is crystal clear, and yet the Service has the audacity to state that its water export limitations "may" result in socio-economic impacts.

We know that, for some reason, many believe the consideration of humans in Endangered Species Act decisions to be ridiculous (for instance, see the comments to this 5/23/09 Central Valley Business Times article). It is a shame that the U.S. Fish and Wildlife Service has satisfied this sort of crowd.

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