Another Year of "Regulatory Flexibility" in Response to California's Drought May Lead to Extinction

More than 40 years ago, a bipartisan Congress enacted - and President Nixon signed into law - the Endangered Species Act. The Act effectively declares that human beings have a moral obligation not to so fundamentally alter the Earth that we drive other native species on our planet extinct, recognizing that what affects the web of life will inevitably affect us too.

California enacted its own endangered species law in 1970. Together, these laws require that we take action to conserve and prevent the extinction of native fish and wildlife, and if necessary, they prohibit actions that would jeopardize the continued existence and recovery of these species. These acts protect animals both big and small: blue whales and bald eagles, grizzly bears - and the salmon they eat - and the small fish that salmon feed on. And by protecting California salmon, these acts protect the jobs of thousands of fishermen across the West Coast whose livelihoods depend on healthy salmon runs.

Whether inspired by the Biblical instruction in Genesis or by more practical concerns about the economic and medicinal benefits of conserving our native species, the Endangered Species Act is our safety net when all else fails. Because once they are gone, they are gone forever.

The Act has been extraordinarily successful in preventing the extinction of native species. But in California's Bay-Delta, we're not just watching the potential extinction of native fisheries in the wild. We are actively driving these species extinct. Today, species that have been on this planet for thousands or even millions of years teeter on the precipice of survival. And if we don't change how we respond to drought, some of these species will likely disappear forever.

As California wrestled with historic drought conditions going into its third and fourth years, state and federal agencies repeatedly weakened and waived state water quality standards protecting salmon and other native fisheries in California's Bay-Delta estuary (euphemistically called "regulatory flexibility"). The drought put state and federal agency managers in an extraordinarily tough position - trying to balance competing uses of water in the driest calendar year in California's history (2014) and the year with the lowest snowpack in recorded history (2015). And in the past two years, they've tipped the scales, weakening water quality standards in order to provide more than 1.35 million acre feet of additional water supply (more than 450,000 acre feet in 2014 and over 900,000 acre feet in 2015).

Yet while this "regulatory flexibility" increased water supply, it has had devastating effects on our native fisheries. Continuing this way will likely have devastating effects on the thousands of fishing jobs that depend on California's salmon runs - on fishermen like Mike Hudson and Larry Collins, Jackie Douglas (one of the first women to run a charter boat in San Francisco - beginning back in the 1960s and 70s!), Roger Thomas, or the thousands of other men and women who struggled mightily when the salmon fishery was closed in 2008 and 2009, costing thousands of jobs and hundreds of millions of dollars in lost income.

Over the past two years, federal and state biologists have acknowledged that the combination of drought and regulatory flexibility has killed virtually every winter run Chinook salmon that spawned in the Sacramento River each of the past two years. It caused massive mortality of fall run Chinook salmon (the backbone of the salmon fishery) in the Sacramento River in 2014 and has caused other native species (like longfin smelt and Delta smelt, two species that were once some of the most abundant fish in the estuary) to be all but impossible to find in surveys as they decline to record low abundances.

This future looks grim - not just for our endangered fish species and the fishermen that depend on them. If we continue on this path, the estuary faces a future of increased harmful algal blooms, like microcystis, making water unsafe to drink or even touch and thereby shutting down water supply for cities and thousands of farms. Microcystis is not just a problem in the Great Lakes, but actually has been showing up in the Delta during the drought - and the problem could get far worse in the future.

But this future is not inevitable. It is a function of the choices that we, as a society, make.

California stands at a crossroads in 2016. In the past two years, the protections required under the federal Endangered Species Act (called biological opinions, which are also required under California's Endangered Species Act) have had very little impact on water supply, because there simply wasn't enough water to pump and divert. Drought, not environmental laws, is the cause of low water supplies. Yet as rain and snow thankfully return this year, scientifically sound limits on pumping are necessary to prevent extinction. These restrictions on pumping have been upheld by the courts and underwent unprecedented levels of independent scientific reviews - including continued scientific reviews. Yet the political pressure to weaken these protections continues.

The Endangered Species Act and these existing biological opinions already include some flexibility. But state and federal agencies have recognized that in 2016 they simply cannot exercise the same level of regulatory flexibility that they did in 2014 and 2015. Their 2016 Drought Contingency Plan acknowledges that:

  • "Due to the declining status of several ESA-listed fish species, operational flexibility in 2016 may be more limited than in 2014 or 2015." (page 10)
  • "USFWS [United States Fish and Wildlife Service] is concerned with the ability to find flexibility in the 2008 BiOp for WY [water year] 2016" (page 22)
  • "2016 will be the third of 3 winter-run cohorts. 2014 and 2015 resulted in very low survival of juvenile winter-run, and therefore, there will be the need to manage very conservatively to protect the third cohort of winter-run in 2016." (Attachment 4)

Similarly, the State Water Resources Control Board concluded in 2015 that "the status quo of the past two years is not sustainable for fish and wildlife and that changes to the drought planning and response process are needed to ensure that fish and wildlife are not unreasonably impacted in the future and to ensure various species do not go extinct."

"Regulatory flexibility" sounds innocuous, but the past two years have shown that it can be anything but. And regulatory flexibility can ultimately lead to reduced water supply, because the failure to implement more limited protections early in the season to proactively prevent problems can result in greater restrictions on water supply later in the year or in future years. This occurred a few years ago, when aggressive pumping operations in December 2012 led to excessive numbers of fish killed at the pumps when storms increased flow and turbidity in the Delta, ultimately causing even greater restrictions on pumping for several months. And we'll likely see this for years to come, as the record low abundances of native species mean that greater - not weakened - protections are needed.

Codifying that "regulatory flexibility" in a federal drought bill could make things even worse - not just under this Administration, which recognizes the need to limit flexibility after the disastrous past two years, but under the next Administration (since drought legislation could be in effect for several years, even after wetter conditions return to California).

Another year of regulatory flexibility could be the last straw. And it won't just be fish that are affected. It will be all of us that lose. And it will be because all of us have failed.

About the Authors

Doug Obegi

Senior Attorney, Water program

Join Us