It’s an odd strategy for the agency charged with operating California’s primary water supply system to try to shut it down. But that is exactly where the Department of Water Resources (DWR) is headed. Let’s hope the state reverses course before it’s too late.
The State Water Project supplies some portion of drinking water to over 23 million people. It is comprised of a series of reservoirs (such as Oroville on the Feather River), pumping plants (including the massive Banks pumping plant in the south Delta) and conveyance canals (the most notable of which is the California Aqueduct, which transports water from Stockton all the way down to Riverside). For the last 50 years, the state has grown up around the State Water Project and relies on DWR to competently run it.
So why is DWR pursuing a reckless legal strategy that, if successful, will shut down the Banks pumping plant and turn the aqueduct into the world’s longest skateboard park? In August of 2005, the state Senate held a hearing to question why DWR had simply ignored the state’s endangered species law for numerous years and had failed to get a permit for taking (killing) literally hundreds of thousands of state threatened and endangered fish at the Banks pumping plant. These state-protected fish include our native stocks of salmon, as well as other native fish, whose populations have plummeted in recent years as exports out of the Delta by the State Water Project increased to historically-high levels. If DWR had obtained a CESA permit, as the law requires, that permit would have included terms to minimize and mitigate those effects, and may very well have avoided the crash of the Delta ecosystem and last-ditch efforts to save it that we are experiencing today.
Yet, after this 2005 hearing, DWR continued to ignore the law, until a group of fishermen successfully sued the agency in state court. That suit, to nobody’s surprise, led to a ruling that DWR was violating the law and had to come into compliance with the state Endangered Species Act (known as CESA) by obtaining a permit for the State Water Project. Given DWR’s lengthy history of ignoring the law, the state court judge gave the agency 60 days to get a CESA permit or he would shut down the Banks pumping plant that was continuing to illegally kill thousands of protected fish. Ultimately, the parties agreed to stay this decision while DWR worked out a plan for complying with CESA with the state’s Department of Fish and Game (DFG).
While DWR had several years to develop a stand-alone state permit with DFG, it instead chose to base its CESA compliance on two federal endangered species permits: the 2008 biological opinion prepared by the U.S. Fish and Wildlife Service for threatened delta smelt and the 2009 biological opinion prepared by the National Marine Fisheries Service for salmon, steelhead, sturgeon and orcas. DFG gave its approval, requiring DWR to operate the State Water Project in compliance with those two biological opinions in order to satisfy its state CESA obligations.
But before the ink was dry on DFG’s approval, DWR turned around and filed suit against the two very same biological opinions on which it based its own state law compliance. DWR now claims that those two biological opinions are unlawful, and recently joined in the efforts of several powerful water agencies to suspend the protections of those biological opinions. (Technically, DWR filed a “nonopposition” to the emergency requests to enjoin these protections. This is the lawyerly version of a wink and a nod – essentially asking the judge to grant the relief without having to ask for it yourself.)
What if DWR succeeds in these efforts? The minute that a court suspends any of the protections of the existing biological opinions, DWR is once again out of compliance with its state law duties under CESA. And it is killing state-protected salmon at the Banks pumping plant right now. Without a valid CESA permit to do so, it is highly likely that the state court judge who previously lost patience with DWR’s failure to comply with CESA will do so again, and order the Banks pumping plant to be shut down.
The citizens of this state who rely on DWR to competently administer both the State Water Project and state laws should demand better. Playing Russian roulette with our water supply is not the answer to the crisis in the Delta.