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Biological opinion takes water from people

Capital Press Editorial June 11, 2009

From San Diego to Redding, Californians are trying to figure out the meaning of the 844-page biological opinion the National Marine Fisheries Service issued last week.

This is a precedent-setting order, one that if unchallenged could derail long-established water law precedent in any Western river basin supporting fish protected under the Endangered Species Act. In the short term, NMFS policies could wreck much of California's agricultural and domestic water supply without providing alternatives.

This is what's known as a "jeopardy opinion." It concludes state and federal water project deliveries in the Central Valley and Southern California must change or salmon and perhaps orcas, the killer whales that feed on salmon, will go extinct.

Cheers are in order for Westlands Water District, west of Fresno, and other public water agencies that announced a lawsuit almost as soon as the NMFS opinion came out.

Cheers are also due to Gov. Arnold Schwarzenegger, who issued a statement saying in part the opinion "puts fish above the needs of millions of Californians and the health and security of the world's eighth-largest economy."

On the other hand, Rep. George Miller, D-Calif., an author of the federal Central Valley Project Improvement Act, hailed the NMFS finding for undoing Bush administration water policy. This opinion does a whole lot more than Miller describes; it continues a "single species" approach to complex water issues that cry out for basin-wide and system-wide thinking and solutions.

Some background is in order. Western reservoirs, for the most part, were either built for flood control under federal law, or in cooperative projects with states and local water users for irrigation. Often hydroelectric power generation offsets part of construction costs paid by users.

State water rights allocate stored water, and specify where and when it will be used. Unless an instream water right is issued for fish or recreational use, water in that reservoir is for the beneficial use of state-permitted users, traditionally through contracts.

The biological opinion replaces one issued in 2004 that was challenged in court. It covers long-term operation of the joint federal-state water system. It's a companion to water supply contracts the U.S. Bureau of Reclamation and the State Water Plan negotiated early in this decade.

There's wiggle room on seasonal water allocation under those contracts and existing law when drought shortens the supply or scientists determine water is needed for fish and wildlife habitat.

The Central Valley Project Improvement Act of 1992, passed during a previous drought, gives sweeping authority to fix habitat, but it doesn't go into detail on water allocation or how competing uses should be balanced when water is scarce.

NMFS says a "reasonable and prudent" alternative to closing down California's elaborate water delivery system is taking 330,000 acre feet of water every year, diverted from users, and releasing it to help fish flows.. Officials at the California Department of Water Resources last week told reporters the opinion's impact may actually be closer to 500,000 acre feet of water pulled out of the combined system.

The biological opinion comes on top of the court-ordered water delivery restrictions designed to aid survival of the Delta smelt, an endangered fish living in the Sacramento-San Joaquin River Delta where the big state and federal pumping plants are.

So far this year, it is estimated that the shutdown of pumps to help smelt caused over 350,000 acre feet of water to go into the estuary instead of the multibillion-dollar reservoir and canal system.

So, is the new biological opinion a major federal action? We think so. As such, the "reasonable and prudent alternatives" ordered deserve an economic and an environmental analysis - across the service area of the Central Valley Project and State Water Plan and their contract water recipients - before water managers shut off the valves and alter the flows.

What's unfortunate is that by using the Endangered Species Act as the legal driver for water management, more lawyers and federal judges will be managing California's water system for a long time to come.

Because of that, it's a profound setback for the decade-old CALFED attempt to resolve Delta issues while keeping the water distribution system functioning.