Drought Rider Jeopardizes California Salmon and other Endangered Species

A draft drought rider to the omnibus appropriations bill, which was leaked to the press last week, proposes to significantly weaken environmental protections for salmon and other endangered species in California's Bay-Delta estuary. Numerous provisions of the bill would undermine scientifically justified environmental protections in order to pump even more water from the Delta, threatening the health of the estuary, its native fish and wildlife, and the thousands of fishing jobs in California, Oregon and Washington that depend on healthy salmon runs. It's a bad idea that will only heighten conflicts over California's water system and should be soundly rejected.

Operations of the state and federal water projects during the drought have helped drive winter run Chinook salmon, Delta Smelt, and other endangered species to the brink of extinction. This bill - which proposes to override environmental protections for endangered species for five years, irrespective of drought conditions (see section 20) - could very well be the nail in the coffin for these species.

For instance, Section 04(a), Section 04(c), and Sections 05(a), (b) and (e) of the draft bill override existing biological opinions under the Endangered Species Act - protections that are designed for the purpose of staving off extinction of native fish species. These sections would allow - and in some cases require - the water projects to pump more water out of the Delta than biologists have determined can be permitted under the Endangered Species Act. The pumping plants in the Delta are so powerful that they cause water in Old and Middle Rivers to flow backwards towards the pumps, instead of flowing naturally towards the ocean. This has played a major role in the decline of salmon and other native fish, and has led to hundreds of millions of fish to be sucked into the pumps over the past few decades. The biological opinions require that Old and Middle River flows (OMR) are not more negative than -5,000 cubic feet per second during much of the year. They also require less negative (more protective) OMR when specific water quality or monitoring data are triggered, such as the first storms of the year that trigger fish migrations (which require -2,000 cfs OMR flows for 2 weeks). These sections of the bill propose to preempt these ESA protections, and also attempt to limit the agencies' ability to reduce pumping based on real time data as required under the biological opinions.

Similarly, Section 2(a) (and several other sections, like section 05(a)) mandates that the agencies operate the Central Valley Project (CVP) to maximize water deliveries. This overrides existing law requiring that the CVP be operated to meet co-equal goals of water supply and environmental protection - co-equal goals that the State of California has affirmed time and again should be the driving principle of Delta water management. The Department of the Interior previously objected to this language in testimony to the Senate Energy and Natural Resources Committee on October 8, 2015.

Other provisions in the draft bill would:

  • Preempt the Bureau of Land Management's determination that the Upper San Joaquin River is eligible for protection under the Wild & Scenic Rivers Act, in order to build the environmentally harmful and economically infeasible Temperance Flat dam (Section 08(b), (c), and (d));
  • Attempt to lock in increased water supplies for North of Delta contractors, undermining Delta outflow and other environmental protections (Section 06(d));
  • Limit environmental review of predator control programs (Section 13), despite the recognized risks that such programs can harm native fisheries and cause other unintended consequences;
  • Threaten water supplies for wildlife refuges (Section 06(c)); and
  • Prohibit implementation of the Endangered Species Act if doing so would alter water rights (Section 06(b)(2)).

With endangered species at record low levels due to the drought and operations of the state and federal water projects, state and federal agencies must fully implement the existing biological opinions and other environmental protections in the estuary. Senator Feinstein and Senator Boxer were right to issue statements that they have not agreed to this bill, which is wholly inconsistent with their stated commitment that drought legislation should not violate environmental laws or the biological opinions. Sadly, it's not surprising to hear that radicals in Congress are trying to add this anti-environmental legislation as a rider to the Omnibus Appropriations bill. Drought, not environmental laws, are the cause of low water supplies for farms, cities, and the environment, and the drought should not be a pretense for waiving environmental protections for the largest estuary on the west coast of the Americas.

About the Authors

Doug Obegi

Senior Attorney, Water program

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