The Good Fight - Check Your Facts Regarding the Delta Water Wars
By Doug Lovell
Editor's note: this article is best viewed at our website, where the Internet
links are "live" or "hot." Doug Lovell has built this article around some blatantly
biased video that has appeared on TV and the Internet. He has also supported his
thesis and research with other Internet links. Enjoy California Fly Fisher's first
excursion into web articles. And let us know if you like this format.
The media coverage regarding 2009 irrigation water deliveries to San Joaquin
Valley agriculture serves to illustrate how the "facts" can be grossly distorted.
Bring up the following media clips:
And lest you think Sean Hannity and FOX News are biased, they claim to present
opposing views - sort of:
Of course Governor Schwarzenegger has some morsels of wisdom regarding this debate:
And if you dig a little deeper, you start to ferret out some of the real issues:
Had enough? Sometimes you can only put things in perspective via comedic relief
(the interesting part starts at 1:50 into this clip):
Many media pieces regarding the export of water from the Delta and its environmental
effects are at best so simplistic as to be worthless and at worst downright disingenuous.
Anytime someone boils down an issue as complex as water exports and its effects
on the environment into a slanted, three-word frame, as these video clips do, such
as "farmers versus smelt," or even a six-word frame, "farmers versus salmon fishermen
versus smelt," it is likely disingenuous. That is not to imply that anyone should
refrain from prioritizing the issues and goals and pursuing a simple and clear strategy,
but where the issues are this complex, simplification can easily turn into mystification.
Just as you can't condense these issues in simplistic ways that serve the interests
of water exporters, you can't boil them down to the simplistic opinion expressed
by some folks in the fishing and environmental community, such as: "All we need
do is enforce the laws and regulations that currently exist." Let common sense be
your guide - what's involved in protecting the Delta is obviously more complex than
deciding whether to enforce laws or not to enforce laws. And none of these issues
are likely to be settled either easily or quickly.
What's All This Fuss about Shutting Off the Water?
The current brouhaha over the Delta and its water is large part the consequence
of two documents prepared by federal agencies with jurisdiction over its threatened
and endangered fisheries. The U.S. Fish and Wildlife Service prepared a biological
opinion regarding impacts to Delta smelt from the Federal Central Valley Project
and the State Water Project. (See
The National Marine Fisheries Service prepared a biological opinion regarding the
impacts to threatened and endangered salmon, steelhead, sturgeon, and killer whales
from the Federal Central Valley Project and the State Water Project. (See
The water projects include a system of reservoirs to store water (principally, Shasta
and Oroville), two pumping stations located in the south Delta near Tracy, and canals
to deliver the water (principally, the California Aqueduct and the Delta-Mendota
Both of these biological opinions concluded that the proposed operation of the
state and federal water-diversion and water-export projects would unduly risk extinction
of the identified special-status fish and adversely modify their critical habitat.
Accordingly, "reasonable and prudent" mitigation measures were deemed necessary.
The reasonable and prudent measures included, most controversially, restrictions
on the timing and magnitude of water exports.
For example, the reasonable and prudent measures for Delta smelt delineated restrictions
on the allowable reverse flow (also known as "negative flow" or "upstream flow")
in the Old and Middle Rivers of the San Joaquin caused by the pumping stations in
the south Delta. You read that correctly - the "reasonable and prudent" alternative
still allows reverse flows in the historic San Joaquin channels nearby the pumps,
albeit at lower magnitude than before.
For threatened and endangered salmon and steelhead, the reasonable and prudent
measures delineated cold-water storage in Shasta Reservoir and cold-water management
below Keswick Dam (actions favorable to both adult and juvenile life stages of anadromous
species), out-migrating water-management alternatives that are favorable to the
salmon and steelhead smolts, plus reductions in reverse flows in the south Delta
to reduce migratory confusion and entrainment.
Depending on what you choose as the "baseline," along with the type of water
year (wet, normal, dry, critically dry) that you wish to consider, total annual
water exports from the state and federal pumping plants in the south Delta will
be curtailed by about 15 to 35 percent, pursuant to the biological opinions. That's
not inconsequential. However, given only a rudimentary knowledge of the negative
impacts of water diversion and export on fish species, one may have expected even
Credit for the forward-thinking, objective biological opinions goes to the federal
fisheries agencies. In a recent letter from more than 30 fishing and environmental
organizations, anglers and environmentalists thanked the agencies for their biological
opinions and encouraged the agencies to stand behind their recommendations. It has
been years since the agencies published a document concerning Delta and Central
Valley fish with such broad support from fishing and environmental organizations.
Credit goes to the Obama administration, which, early on, promised to restore
the role of science in policy decisions, a promise on which the administration has
largely followed through. The elevated role of science in the Obama administration
has emboldened the fisheries agencies to take up the good fight once again for other,
important, diminished salmon runs, such as the Columbia River runs. (See
Credit also goes to the environmental attorneys at Earthjustice and the Natural
Resources Defense Council for prosecuting the lawsuits that challenged the previous
biological opinions, along with the plaintiff groups who sued, including California
Trout, the Friends of the River, the Northern California Council of the Federation
of Fly Fishers, the Pacific Coast Federation of Fishermen's Associations, the Sacramento
River Preservation Trust, the San Francisco Baykeeper, the Bay Institute, and the
Winnemem Wintu Tribe.
The lawsuits were no small effort, with expenses exceeding $100,000 for expert
witnesses, court reporters, transcripts, and so on, and that doesn't include attorney's
fees, which were donated by Earthjustice and the NRDC. But the effort was worthwhile.
Judge Oliver Wanger, from the Eastern District Federal Court of California, a weathered
veteran of the Delta water wars, threw out the previous biological opinions, which
had not called for curtailment of water exports. (See
Judge Wanger directed the federal fisheries agencies to develop new, more protective
In terms of official, written governmental policies, this is largely where we
stand today, with more favorable water management and lower risk to the threatened
and endangered fisheries that depend on the Delta. Other species that are not threatened
and endangered, including fall-run chinook salmon and striped bass, will also benefit
from the revised water-management policies. However, the Delta water wars are never
The Battle over Water Never Ends
The two new biological opinions represent significant fishery and environmental
victories . . . top-tier victories, which have unfortunately been few and far between
over the past decade. They rank right up there with rewatering of the San Joaquin
River below Friant dam and stopping the increase of water exports at the state's
Banks pumping station from 6,680 to 8,500 cubic feet per second, an effort known
as the South Delta Improvements Program.
Because of the value and scarcity of water in arid California, along with the
multitude of businesses and individuals dependent on water diversions and exports
from the Delta, the biological opinions are under attack. This is part of a never-ending
battle in which the "balance" between abundant, economical, subsidized, drought-resistant,
developed water and clean, cold, natural, in-stream flows is played out in the political
and legal arenas.
No fewer than a dozen lawsuits have been filed claiming, in part, that the federal
fisheries agencies overstepped their Endangered Species Act mandates via the biological
opinions. Plaintiffs include the Westlands Water District (the fishing community's
poster child for fishery and environmental contempt), the Kern County Water Agency
(vying to displace Westlands for this dubious distinction), the (misnamed) Coalition
for a Sustainable Delta (which filed the lawsuit to remove game-fish status for
striped bass), the Metropolitan Water District of Southern California, the San Luis
and Delta-Mendota Water Authority, the State Water Contractors, and the Stockton
East Water District. In fishing vernacular, it is a "cluster fish-out." Judge Oliver
Wanger will hear the case. The federal fish agencies are the primary defendants,
and the Obama administration's policies will determine how vigorously the biological
opinions are defended.
Earthjustice has confronted the legal challenge by filing for defendant-intervener
status on behalf of the groups that initiated the previous lawsuits that facilitated
the new biological opinions now being challenged by the water interests. (See
Those wishing to make meaningful monetary donations on behalf of the Delta should
consider supporting Earthjustice and the environmental and fishery groups credited
above. They are organizations that have delivered and that continue to deliver on
their promise to protect the Delta.
In addition to the legal challenges, our elected officials and their appointees
have weighed in regarding the biological opinions. Governor Schwarzenegger has been
blunt and blatant: He has oversimplified the issue as farmers versus fish and, not
surprisingly, has thrown his support to the farmers. Fish neither vote nor make
Lester Snow, Schwarzenegger's appointment as director of the California Department
of Water Resources, has attempted to undermine support for the biological opinions.
In an early response to the opinions, Director Snow characterized the curtailments
of water exports as "extreme." He also put forward theories about how the fisheries
may be protected without curtailing water exports. (See
Representatives Devin Nunes, Dennis Cardoza, Jim Costa, and George Radanovich
have pulled out all the stops in the U.S. Congress and have prayed for relief from
the Endangered Species Act with calls to convene a special federal panel nicknamed
"the God Squad" to implement a provision of the act to waive protections when reasonable
and prudent measures cause damage to interests deemed to be more important than
preventing extinction. (See
In a straightforward reply to these congressmen, U.S. Secretary of the Interior
Ken Salazar, and Deputy Secretary David Hayes responded that such an approach would
defeat the expressed goals of restoring the Delta environment and preserving a reliable
water supply- a defeat the Obama administration is unwilling to accept. (See
In what may turn out to be the boldest move of all, Senator Diane Feinstein has
called for a review of the biological opinions by the National Academy of Sciences,
stating that the NAS "is the only body whose views will be respected by all relevant
parties as a truly independent voice." (See
Secretary Salazar responded with a commitment to undertake and complete the review,
requesting "additional scientific analysis of the California Bay Delta ecosystem
and help identifying whether there are scientifically defensible alternatives to
current water management plans in California." (See
Approximately $750,000 has been appropriated for the review, and it is getting underway.
Senator Feinstein's motives have been questioned - specifically, she has admitted
that Stewart Resnick, a wealthy farmer dependent on water exported from the Delta,
influenced her decision. (See
DiFi attached a letter from Stewart Resnick to her request for the NAS review.
Whatever the motives involved in initiating the review, the National Academy
of Sciences is universally considered the Supreme Court of scientific opinion, and
its conclusions carry great weight. The conclusions will undoubtedly reiterate the
conventional wisdom regarding fish and the Delta: Invasive species and toxics are
important stressors, in addition to water exports; the Delta environment has been
irretrievably altered, and restoration of predevelopment conditions is not feasible;
and great uncertainty exists regarding the fishery impacts directly attributable
to water exports. Fortunately, the scientist's unfettered thinking will see the
light of day - an outcome I greatly appreciate and one that was most uncertain had
the review been performed under the Bush administration. In general, the more science
brought to bear on the policy question of how much water should be diverted from
the Delta, the better.
The most deceitful media pieces regarding the biological opinions have failed
to consider the impacts California's recent drought. Several attempts have
been made to parse the reductions of irrigated water delivery, including a December
2009 report by the Congressional Research Service (See
a nonpartisan research arm of congress that apportioned 70-75% of the reductions
from lack of rainfall and 20-25% to fishery protections. I find it unconscionable
that any media piece on recently reduced water diversions from the Delta would fail
to identify the primary cause as lack of precipitation - but our fishing community
has at times taken a similar approach - how many times have you heard that the fall-run
chinook salmon collapse in our Central Valley rivers results from Delta water diversions,
without mention of ocean conditions and dams?
New State Delta/Water Legislation
In early November 2009, the legislature passed and Governor Schwarzenegger signed
a package of bills intended, among other goals, to provide a comprehensive framework
for resolution of water exports from the Delta. (See
This legislation was intended to break the stalemate or gridlock that has plagued
the state since the CALFED Bay-Delta Program fizzled several years ago. The legislation
largely codifies the results of Governor Schwarzenegger's Delta Vision Blue Ribbon
Task Force, a multiyear effort that formalized the pragmatic, coequal goals of water
supply reliability and a healthy Delta ecosystem. (See
The legislation remains very controversial, and just in the past month, much
information and disinformation has been published regarding the expected fishery
impacts. I could not do justice to this legislation were I to devote this entire
article to it. However, one of the legislative provisions bears directly on the
issue of water exports - the State Water Resources Control Board, in conjunction
with the California Department of Fish and Game, has been empowered/mandated to
determine the Delta inflows that are necessary to meet public-trust requirements
under California law. This determination has been a priority for the fishing and
environmental community for years. This provision does not depend on the success
or failure of the major water bond that is part of the legislative package and will
be on the ballot in November 2010.
Another Piece of the Puzzle: The Bay Delta Conservation Plan
Under the direction of the California Resources Agency, the agency containing
the Department of Water Resources and the Department of Fish and Game, in collaboration
with federal and local agencies, a major planning effort is underway that will largely
determine water diversions from the Delta for decades to come. This is the effort
to develop the Bay Delta Conservation Plan. (See
The agencies charged with developing the plan maintain that the plan will comply
with the Federal Endangered Species Act and the California Natural Communities Conservation
Planning Act (NCCPA). That remains to be seen.
One of the benefits of the recently enacted Delta/Water legislation was a mandate
for the plan to comply with the NCCPA. Prior to this, compliance was not mandatory.
This provision, too, does not depend on the success or failure of the major water
bond that will be on the ballot in November 2010. Adherence to the NCCPA raises
the bar for fisheries restoration during the planning process, from "avoiding jeopardy"
(the likelihood of species extinction) to "recovery" (species delisting). The important
details of how this will be accomplished, along with how much water can be diverted
while realistically achieving recovery, remain to be seen.
American Rivers, the Defenders of Wildlife, the Environmental Defense Fund, the
Natural Heritage Institute, the Nature Conservancy, and the Bay Institute constitute
the nongovernmental organizations representing fishery and environmental interests
in the planning process. Public involvement has been and will continue to be solicited.
It is largely a foregone conclusion that the final Bay Delta Conservation Plan
will be challenged in court, and several fishing and environmental organizations
are currently planning their strategies.
The Good Fight Is the Long Fight - Supported by Reliable Information
I could go on, but suffice it to say that the amount and timing of water diversion
and export from the Delta is, has always been, and will forever be a complex and
controversial issue. When I was introduced to Delta water issues more than a decade
ago, I held the optimistic view that all parties would eventually exhaust all arguments,
and some objective arbiter could condense those arguments to a final, objective,
defensible conclusion. I no longer hold that view. I have decided, at least until
proven wrong, that the debate is inexhaustible, never-ending, and perpetually inconclusive.
It is a debate in which we will forever need to be engaged, and fishery flows are
something for which we will forever need to advocate. We, as fish huggers and ecosystem
disciples, must diligently train our replacements to prosecute and persevere in
the pursuit of our core values. To state it another way, those who naively believed
we solved the problem by defeating the Peripheral Canal in the 1980s were grossly
As you participate in this debate, it is paramount that you view your information
sources with skepticism - and this includes my words. There is no substitute for
diligent research, but it is research that will reap great benefits for your soundly
held views. There are no simplistic questions, no simplistic answers and few reliable
sources of information.
Doug Lovell can be contacted at firstname.lastname@example.org
PDF version of this article: The Good Fight (PDF)