On Tuesday morning, I read the 36-page opinion and order of Fresno Federal District Court Judge Dale Drozd granting the motion by the State of California and a group of environmental organizations for a preliminary injunction to prohibit the Central Valley Project (CVP) from operating its Delta pumping plant according to the new federal rules from May 14 until May 31. As I explained in an article I wrote about this issue two weeks ago, there are some fish species in the Delta that are protected by the Endangered Species Act. I thought there were two – the Delta Smelt and the Winter run Salmon – but there must be others because this decision by the court was to send more water to the ocean to protect the California Central Valley (CCV) Steelhead.
In a nutshell, there are three diversity groups of CCV steelhead that hang out in the Delta, with a certain group of steelhead migrating in the southern Delta near the pumps in the late spring. The old pumping plans designed to protect endangered fish regulated how much water could be pumped based on a ratio of inflow to the Delta to the allowable export from the pumps – the so called I/E ratio. The new plan got rid of the I/E ratio and uses a metric of counting how many endangered fish get trapped at the fish screen that sits in front of the pumping plant. The new pumping plan sets a limit of 1,552 steelhead that can be salvaged at the pumping plant between April 1 and June 15. It requires that when 50% of this number or 776 steelhead show up, then pumping needs to be throttled back. As of May 5, a total of 253 steelhead had showed up, or 33% of the 50% trigger. To quote the Judge, “In light of the above, defendants emphasize that actual loss numbers have not yet approached the 50% loss threshold, suggesting that this fact is dispositive of the court’s irreparable harm analysis. The court does not agree.”
Long story short, Judge Drozd was not convinced that the fish counting strategy was protective enough of the steelhead, and so he imposed a preliminary injunction ordering the CVP pumps throttled back and operated to the old 2009 Biological Opinion standard until May 31. How much water, in this relatively dry year, will be lost over these two and a half weeks of throttled back pumping? CVP contractors estimated that number at 52,000 acre-feet. How much is 52,000 acre-feet of irrigation water worth? This week, Semi-Tropic Water Storage District in Kern County priced extra surface water to their growers at $650 per acre-foot. Buena Vista Water Storage District in Buttonwillow price some extra water they had available a few weeks ago at $800 per acre-foot. In Madera, extra water was priced at $375 per acre-foot and so there is a range. Using a $500 per acre-foot value, 52,000 acre-feet of south of Delta water supply is worth somewhere in the range of $26,000,000.
How much economic activity and tax revenue could have been generated from the usage of this water in the farming community as opposed to sending it out to the ocean? Did the court have any discretion? Judge Drozd talks about that in his decision: “Congress has ‘removed from the courts their traditional equitable discretion in injunction proceedings of balancing the parties’ competing interests.’ (citation omitted) Thus, it is a ‘fundamental principle’ that, when courts are ‘confronted with requests for injunctive relief in [ESA] cases,’ the third and fourth prongs of the preliminary injunction standard— the equities and public interest factors—'always tip in favor of the protected species.’ (citation omitted).”
This is just round one in what looks like a protracted legal battle over how many, of what kind, and during what time period will it take to protect these fish. I am going to make a couple of observations here that may upset some people. I was in the Delta last week looking at things. There is a lot of water there. And there are a lot of farms there who use Delta water to irrigate their crops. That water does not originate there – it comes through there from the Sierra Nevada mountains. The common method of irrigation is to have an open pipe stuck in the river or slough that sits 20 to 30 feet of elevation higher than the land surface. These open pipes, many with no screens, run up from the river over the levy and then down the other side where the water is distributed to the field. To get the flow of water started all that is required is to create vacuum to start the siphon, then gravity takes care of the rest.
How many steelhead smolts (and smelt and salmon) get sucked into those pipes? On the other hand, the pumping plants for the big water projects are essentially dead ends for the fish. When they get turned on, they can actually reverse the flow of the rivers. This is probably not good for fish either. Our forefathers left us with some engineering marvels and laid the groundwork for the development of an agriculture and urban miracle that is California. They had a much different perspective on what balance was, or was not, between man and the environment. We live in a whole different world today. And the laws society has passed require us to recognize a different balance.
My conclusion is that we will be forever battling and losing until we figure out how to grow more fish. And we probably need some changes to the way our pumps in the Delta work as well. I think this is really the point of the Voluntary Agreements process that showed so much promise until politics took over. We need to get back to the table in good faith to put a plan together that gets the balance right for both the fish and the millions of people and acres of productive farmland that depend on this resource for their livelihood.
If this continues to be a legal battle, Judge Drozd will likely be the man governing our water future. I strongly recommend you read his decision. I may have come to a different conclusion than he did, but I respect him for the care he took in making his judgement. When you read it, keep in mind that the court hearing on this issue was May 7 and his decision came out on May 11, just 4 days later. Judge Drozd looks equipped to give us legal decisions, but I seriously doubt we can get a happy outcome if we try to solve this problem in a courtroom.
Geoff Vanden Heuvel
Director of Regulatory and Economic Affairs