Endangered Species Act: Still the Big Gun?

Despite its chronic shortage of fresh water, the Sacramento-San Joaquin River Delta has received significant protections and mandates for increased flows over the years, primarily because of the U.S. Endangered Species Act (16 U.S.C. §§ 1531-1544). Passed in 1973 during the Nixon administration, the ESA has been the big gun for lawyers seeking court action to preserve habitat for the delta's endemic wildlife and its general water quality. "When the ESA talks," says fisheries consultant Bill Kier of Humbolt County, "the bullshit walks."

For delta environmental advocates, the most important ESA decision has been a 2007 ruling by U.S. District Court Judge Oliver Wanger to protect the delta smelt, a tiny, brackish-water fish that is listed under the act as a threatened species (Natural Resources Def. Council v. Kempthorne, 2007 WL 4462391 (E.D. Cal. 2007)). Thanks to Wanger's ruling, about 700,000 additional acre-feet of freshwater was sent through the delta in 2009 alone.

New ESA cases significant to the delta ecosystem pop up regularly. Most recently, the Center for Biological Diversity filed two lawsuits under the act against the U.S. Fish and Wildlife Service. The first complaint challenged the agency's refusal to grant ESA protection to the longfin smelt, another scarce delta fish (Council for Endangered Species Act Reliability v. Salazar, 09-02875 (E.D. Cal. filed Oct. 15, 2009)). The second demanded that Fish and Wildlife respond to an earlier request to change the delta smelt's listing from threatened to endangered (Center for Biological Diversity v. Salazar, 09-03154 (E.D. Cal. filed Nov. 13, 2009)). In December both cases were transferred to the Fresno division of the court and merged with the Delta Smelt Consolidated Cases (No. 09-407 (E.D. Cal.)) pending before Judge Wanger.

But Cynthia Koehler, the Environmental Defense Fund's legislative director for water issues in California, notes that the ESA may be in as much danger as the delta smelt. "We're not at all sure how long ESA protections will hold," she says. "The general legislation is under unrelenting attack, and the same can be said of the biological opinions [issued through the act] that provide specific protection to different species."

Koehler's concerns seem prescient, given Sen. Dianne Feinstein's recent move to seek National Academy of Sciences review of biological opinions controlling the transport of delta water. Feinstein made the request in September at the urging of Stewart Resnick, a billionaire and corporate farmer whose company controls the Kern Water Bank, a vast subterranean reservoir essential to agriculture in the San Joaquin Valley.

Resnick and Feinstein are friends - or at least, very friendly. Resnick has donated tens of thousands of dollars to her election campaigns, and he threw a party for the Senator at his Beverly Hills estate. Feinstein has acknowledged forwarding to the Obama administration a letter Resnick wrote asking for the review, but she emphasized that his opinion was shared by a large group of farmers she had met with separately in Coalinga.

Regardless, Koehler thinks that Feinstein's request - subsequently approved by the Obama administration - to re-examine the entire delta environmental protection plan is a bad omen for continued reliance on the ESA. "At this point, the biological opinions are the only thing holding salmon protections together," she says, referring to limits imposed on the commercial fishing of threatened runs of coho salmon in the state's rivers. "That's a very, very thin reed. We need additional protections - and the new [state] legislative package is a big step in that direction."

Even so, the courts are likely to remain the final arbiter for allocating the state's water, and perhaps for saving both farms and fish in the delta. But fisheries consultant Kier is not eager for more litigation. "If the state water board fails to meet its public trust obligations for sufficient delta flows, they'll certainly be open to legal challenge," he says. "But it would be very discouraging, given that the fish don't have much time. Any victory we could claim would be a Pyrrhic one." ?GM

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