Outdated Water Regulations: A Call for Action

Despite the fact that California has very full Northern California reservoirs and plenty of capacity in the major aqueducts and space to store water south of the delta, the state and federal delta pumping plants sit virtually idle, allowing tens of thousands of acre-feet of fresh water to flow out to the ocean every day. As the Water Blueprint for the San Joaquin Valley pointed out in a statement this week, the reason this water is heading to ocean is a 25-year-old regulation called D-1641. This regulation, enforced by the State Water Resources Control Board, severely restricts pumping from the delta between April 15 and May 15 each year. The regulation is designed to help fish and water quality. What the Blueprint statement points out is that “despite the longstanding implementation of all of the D-1641 requirements, fish populations have continued to decline, leaving biologists…and water users…questioning what, if any benefit this requirement is providing.” This restriction will cost California water users about 250,000 acre-feet of water this month and is part of the reason that, despite having an above average precipitation year, State Water Project contractors and federal south-of-delta water contractors are only being allocated 40 percent of their contracted supplies. The Blueprint statement calls on both the state and federal governments to update the regulations to be more efficient in providing environmental benefits as well as increasing the water supply for human needs.

Significant Change Proposed for Endangered Species Act

Another very important development this week that holds great promise to advance the idea of environmental efficiency and human flourishing is a formal proposal by the federal Fish and Wildlife Service (FWS) and the National Oceanic and Atmospheric Administration (NOAA) (these are the two federal agencies that administer the federal Endangered Species Act) to update the definition of “harm” in the federal Endangered Species Act (ESA).

The ESA was passed with the best of intentions in 1973. Its goal was to save endangered species from extinction. But the ESA has been weaponized to curb all sorts of important and vital human activities, from building houses to delivering water for farming, industrial, and urban needs. The ESA prohibits the “take” of endangered species and then defines what the term “take” means; “[t]he term ‘take’ means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The word “harm” in this definition is what FWS and NOAA want to return to its original meaning. Over the past decades, the definition of harm was expanded by federal agencies to include modifications of habitat in addition to actions that actually injured or killed an endangered species. This expansion of the definition of harm to include large areas of habitat is the way the ESA was weaponized to greatly expand its power to control and stop human activity.

The proposed change would simply drop the previously adopted expansion of the definition of harm to include habitat and allow the original ESA statutory definition of “take” to apply to ESA regulations. This move could open the door to a substantial reform of the current, very onerous ESA regulations. A 30-day comment period is now open on the proposal.

Geoff Vanden Heuvel

Director of Regulatory and Economic Affairs