“The best lack all conviction, while the worst are full of passionate intensity.” – W. B. Yeats
These words that William Yeats penned almost 100 years ago pop into my head every time the well-intentioned people in California’s regulatory agencies make bad decisions that sacrifice California’s natural resources in the interest of short-term expediency (which, unfortunately, is pretty often these days).
Most recently, the National Marine Fisheries Service (NMFS) waived requirements to increase flows from the San Joaquin River system and reduce exports at the massive water project pumps during April and May. These requirements are designed to allow juvenile salmon and steelhead to migrate safely out of the system and without them, NMFS itself has determined that we will wipe out these populations.
It was especially important to adhere to this requirement this year, after salmon and steelhead populations have suffered massive losses during the last couple drought years, and after a decent number of fall-run Chinook made it into the San Joaquin system last fall during higher flow events. Now, very few of the offspring of those fish are likely to make it safely out to sea to help rebuild the population.
Meanwhile, the fishing industry up and down the coast braces for deep cuts in this year’s salmon season, due in part to the failure of NMFS and others – including the State Water Resources Control Board (SWRCB) – to do their jobs over the last few years and protect these populations.
The restrictions on the ocean fishery are greater than what is required by the existing biological opinions protecting endangered salmon, even though it was the failure to manage reservoirs and water project operations that killed off 95 percent or more of the endangered winter-run Chinook salmon the past few years. Yet, even as the agencies demand that fishermen get cut more, they continue to allow the water projects to implement far weaker protections than are required by the biological opinions.
NMFS’s most recent decision is only one of over 45 individual harmful decisions to weaken or waive environmental protections that the agencies charged with protecting our fish and wildlife have made over the last three years in the San Francisco Bay-Delta ecosystem.
Collectively, these decisions diverted more than 1.35 million acre-feet (1,655 cubic meters) away from the environment and to other uses in 2014 and 2015 – that’s more than twice the amount of water used by the City of Los Angeles in a year. And that’s not counting the SWRCB’s decade-long failure to update woefully outdated water quality standards in the Bay-Delta, a task that is supposed to be completed every three years but that the SWRCB has repeatedly postponed.
Predictably, the result has been that many of our native fish populations have plummeted to their lowest levels ever, and are now teetering on the knife’s edge of extinction.
What’s going on here? The people making these decisions are not bad people, and, more often than not, are deeply committed to the cause of protecting the environment. So why are they repeatedly making bad decisions?
Following the Whims of Politics, Rather Than the Law and Science
During the drought, the regulatory agencies have fallen into the habit of waiving or weakening protections that would otherwise be required if they followed the law and science. This dangerous, unpredictable and idiosyncratic practice – sometimes called by the misleading moniker “regulatory flexibility” – has led directly to the severe declines in salmon and other native fish populations that we’re seeing today.
Over the past two and a half years, the SWRCB has waived water quality standards in and upstream of the Delta close to 20 times. NMFS, the U.S. Fish and Wildlife Service, and the California Department of Fish and Wildlife have similarly waived the requirements in applicable biological opinions about 30 times.
The agencies now waive or weaken legally required protections as their default option, rather than figuring out ways to protect public trust resources and meet the minimum requirements that they’ve already determined are needed to avoid jeopardizing the continued existence of several runs of salmon, steelhead, sturgeon, smelt and even orcas.
NMFS’s most recent decision was to waive the requirements in its 2009 biological opinion for a 2:1 San Joaquin inflow/export pumping ratio to help salmon and steelhead migrate out of the San Joaquin system in April and May. The SWRCB has also been asked by Reclamation to approve a waiver of the minimum flow requirements to protect salmon and steelhead on the Stanislaus and San Joaquin Rivers, cutting those flows drastically despite the fact that the SWRCB has concluded that the current minimum flows are inadequate, and that irrigation districts will be allocated 600,000 acre-feet (740 million cubic meters) of water from the river (more than half of the anticipated runoff).
The agencies could have and should have required Reclamation to reduce its 100 percent water allocation to water users below New Melones reservoir, and kept some of that water instream instead of allowing it to be diverted.
Nothing in the law allows Reclamation or other water users to ignore the obligation to prevent endangered species from going extinct to meet excessive and outdated water demands. Quite the contrary. Just like in the case of releases from Shasta Dam over the last couple of years, Reclamation, NMFS, and the SWRCB have an obligation to ensure that endangered salmon are protected first, and then to allocate the remaining water to irrigators.
The SWRCB took similar action in Mill, Deer and Antelope Creeks in recent years, curtailing diversions to ensure that minimum flows would remain instream to allow for fish passage. There is no reason that regulators couldn’t take the same action here to protect this vital public resource.
The agencies also could have and should have limited pumping from the massive export pumps during the April and May migration period to improve salmon passage. Instead, NMFS reflexively agreed to a so-called minimum “health and safety” level of pumping that, in reality, has no relation whatsoever to meeting “health and safety” needs.
Reclamation and DWR have defined those needs specifically for 2016 and there is no question that they will be met, without pumping a minimum of 1,500 cubic feet per second during April and May. Instead, Reclamation is pumping at higher levels during April and May for the explicit purpose of transferring water to Westlands Water District, which will not use the water to meet drinking water, fire, sanitation or other health and safety needs. But this water sale also could have simply been shifted to the summer or later in the season, when pumping restrictions aren’t needed to allow salmonids to migrate out to sea.
Without adherence to the law and science, we inevitably get decisions that are tainted with the insidious, day-to-day corruption of bowing to the interests of the moneyed and the powerful. It’s time to remember that we are a nation of laws, not men. And it’s long past time to reject the sacrifice of healthy rivers and fisheries in California to the short-term interests of corporate agriculture.
The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Water Deeply.