Waiving Environmental Rules Causes Unreasonable Impacts to Bay-Delta's Fish and Wildlife

California's drought, now in its fourth year, is causing hardships for farmers, rural communities, and fish and wildlife around the state. With so little rain and snow over the past several years (2015 is on track to be yet another "critically dry" water year type), the CVP and SWP announced very low water allocations for farms and cities in 2014, except for agricultural districts on the Sacramento, San Joaquin, Feather, and Stanislaus Rivers who claim senior water rights (most of whom received 75% of their contract amounts in 2014, even as other nearby contractors got zero allocations). Several small rural communities have seen their wells run dry, as nearby farms drill deeper wells and dramatically increase groundwater pumping, leading local governments to truck in water for residential use.

And the state's fish and wildlife are also suffering. For instance, more than 95% of last year's endangered winter run Chinook salmon were killed by lethal water temperatures below Shasta dam (dam operators ran out of cold water, despite state and federal agencies waiving environmental rules to allow for increased reservoir storage to protect those salmon). Other salmon runs, including fall run Chinook salmon (the backbone of the state's salmon fishery that supports thousands of jobs) and threatened spring run Chinook salmon, are also suffering through the drought. And the abundance of Delta Smelt and Longfin Smelt, two native fish species in the Delta that scientists have long considered to be "canaries in the coal mine," declined to record and near record lows, respectively, in 2014.

But the impacts to native fisheries aren't solely because of drought - they are also the result of actions taken by state and federal agencies in 2014 to suspend environmental protections in the Delta for salmon and other native fisheries. Last year, the agencies repeatedly suspended limits on export pumping, allowing greater water diversions by the CVP and SWP than permitted under their permits. The State Water Resources Control Board repeatedly waived minimum flow requirements for the rivers that flow into the Delta, and the Board also approved numerous petitions to waive or weaken the minimum requirements for Delta outflow, the amount of water that is allowed to flow out of the Delta into San Francisco Bay.

Yet despite the devastating impacts to fisheries from drought and operations in 2014, this year the state and federal agencies proposed to worsen conditions in the Delta (filing a petition to increase water exports and further decrease Delta outflow as compared to operations last year). In a workshop last week, the Executive Director of the State Water Resources Control Board admitted that operations of the CVP and SWP in 2014 had caused "unreasonable impacts to fish and wildlife," which is the legal standard that must be met in order for the Board to waive the environmental requirements attached to the CVP and SWP's water rights. That's why the Executive Director approved most of the petition to suspend environmental standards in the Delta again this year, but disapproved the part that would make things worse than last year's operations. The parts of the petition that the order approved may result in at least 85,000 to 170,000 acre feet of water no longer being required for minimum Delta outflow and environmental purposes as required by the terms and conditions of the CVP/SWP's water rights, thus increasing water supplies for farms and cities (here's a link to the staff presentation).

Delta outflow is one of the most important factors affecting the health of the estuary, affecting the abundance of numerous fish species, the success of invasive species like corbula (Asian clam), and the productivity of the estuary. Delta outflow is also essential to maintain water quality for farmers and cities in the Delta, and ultimately for the CVP and SWP itself: freshwater flowing out of Delta pushes against the tides bringing saltwater upstream, creating a barrier that enables the CVP and SWP to pump fresh water instead of salt water.

Scientists from the Fish and Wildlife Service, National Marine Fisheries Service, California Department of Fish and Wildlife, and academia all generally agree that the existing delta outflow standards are inadequate to protect the Delta's native fisheries, and that stronger outflow requirements are needed. In 2010, the State Water Resources Control Board, after numerous hearings, adopted a resolution and report finding that the best available science indicated that existing standards are not adequate to protect public trust fishery resources. And in 2012, the California Department of Fish and Wildlife recommended that the SWRCB increase Delta outflows and limit exports in order to protect native fisheries.

To put it in context: from February to June of 2014, the Bay Institute found that approximately two thirds of the natural flow in the watershed was stored or diverted, and only one third made it through the Delta (see graph below prepared by the Bay Institute). In contrast, in its 2010 report, the SWRCB concluded that the best available science showed that 75% of the natural flow in the watershed should flow through the Delta, with only 25% stored or diverted, in order to fully protect public trust resources (this was a non-binding recommendation).

TBI 2014 outflow graph.pngMoreover, according to the SWRCB in water year 2014 the vast majority of the water that was allowed to flow through the Delta was necessary to maintain the salinity barrier that enables farmers, cities, and the SWP and CVP to continue to divert freshwater instead of pumping salt water.

SWRCB 2014 outflow graph.pngYet inexplicably, the state and federal agencies proposed to worsen conditions as compared to last year by decreasing delta outflow and increasing exports, despite the wealth of scientific evidence showing that it would harm the health of the estuary in the long term. Indeed, the U.S. Fish and Wildlife Service admitted during the hearing that they did not "consider the effects on the ecosystem as a whole," and they and other agencies didn't even consider impacts to fall run Chinook salmon, starry flounder, or other species that depend on outflow from the Delta.

At last week's workshop, NRDC and other fishery and conservation groups urged the State Water Resources Control Board to better protect the Delta's native fisheries, expressing our opposition to the SWRCB's decision and urging the Board to require the CVP and SWP to meet the existing minimum outflow requirements of the Bay Delta Water Quality Control Plan if they want to pump more water from the Delta. If last year's operations caused unreasonable impacts on fish and wildlife, it seems clear that we need to better protect the Delta than we did last year, not further weaken protections for its fish and wildlife and the thousands of jobs that depend on a healthy estuary. The SWRCB should strengthen the executive director's order, not weaken it.

Waiving environmental rules in the Delta is causing unreasonable impacts to our fish and wildlife populations, and to the thousands of jobs and communities that depend on a healthy delta. The drought demonstrates that California needs to do more to reduced reliance on water from the Delta and invest in water recycling, water use efficiency, stormwater capture, and other regional and local water supplies, as required by the Delta Reform Act. Proposition 1 provides important funding to help with these efforts, but there's much work to be done and no time to waste.

About the Authors

Doug Obegi

Senior Attorney, Water program

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