PLF Asks the Supreme Court to Put the Demands of the Few Over the Needs of the Many

Last week, the Pacific Legal Foundation asked the U.S. Supreme Court to overturn the Ninth Circuit Court of Appeals’ ruling validating the 2008 delta smelt biological opinion (“BiOp”). The 2008 BiOp analyzes the impact of two of the country’s largest water diversion and storage projects, the federal Central Valley Project and California’s State Water Project, on the health of the largest and most important freshwater estuary on the west coast of the Americas, the San Francisco Bay-Delta, and one of its native species – the threatened delta smelt, a key indicator species whose fortunes rise and fall with the health of the Delta. The delta smelt BiOp, and the companion salmon BiOp that looked at the impacts of the two water projects on California’s native salmon, steelhead, and sturgeon, found that if the water projects continued to divert water out of the estuary at the historically high rates seen in the early 2000s, the Delta would continue its precipitous decline; all of these native fish would likely go extinct; the invasion of exotic clams and weeds in the Delta would worsen, including expansion of the potentially toxic blue-green algae that recently shut down Toledo’s drinking water supply; and water quality would decline, threatening the drinking water supply for 25 million Californians and irrigation water supply for thousands of Delta farmers. To address these threats, the BiOp proposed limits on pumping and other modifications to water project operations that return water diversions to the average levels of the 1980s and 1990s. 

These protections are widely regarded as scientifically necessary by nearly every credible biologist working in the Delta, including California’s own Department of Fish and Wildlife, which has adopted the BiOp wholesale and imposed its requirements under the California Endangered Species Act. Even if the protections were modified under federal law, they would still apply under state law. These protections are also supported by salmon fishermen, Delta farmers, and Bay Area cities and residents who recognize that sustaining the delta smelt means sustaining a healthy Bay-Delta watershed and all the benefits of a healthy watershed, including robust salmon runs, good water quality for irrigation, and a San Francisco Bay that can support Dungeness crab, herring, and other native fish and wildlife. 

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But PLF wants the Supreme Court to overturn all of these protections so that ever more water can be diverted out of the Delta to supply the unquenchable demands of a few wealthy agribusinesses growing nuts for export. The lead challenger in PLF’s petition is Stewart and Jasper Orchards, which the Modesto Bee describes as “among the largest growers and processors in California’s rapidly expanding almond industry. Last year it processed about 40 million pounds of nuts, which was more than 2 percent of the state’s almond crop…..  About 70 percent of what [the] company produces gets exported, mostly to Japan, South Korea and Canada.” The state’s almond industry is the top-revenue producer in the agricultural sector, generating $4.35 billion dollars in cash receipts in 2012. Two percent of that total is $87 million dollars. This is not anyone’s version of a struggling family farmer.

According to California’s Department of Food and Agriculture, almost 67,000 acres of almonds have been planted in California during the height of the drought – from mid-2013 to mid-2014. Close to three quarters of these almond tress (48,000 acres) are new almond orchard acres and almost 24 percent (16,000 acres) replace existing orchards. All of these new plantings of permanent crops were made at a time when it was clear to anyone who was paying attention that both our surface water and groundwater resources were overtapped and could not sustain the existing level of demands put on them, let alone new demands. Are we going to continue sacrificing our native species and natural resources to feed this unsustainable expansion of almonds and other permanent crops?

This challenge is a microcosm of the larger struggle being waged in California to learn to live within the means of our freshwater system. The decline of the Delta is a warning flag that we have overtapped our surface water supplies and need to cut back if we are going to continue to rely on that system in the future. The increasingly rapid pace of land subsidence and declining groundwater levels in the Central Valley are similar warning bells that we have overtapped our groundwater supplies. The question is not whether we need to change our ways – we have already exceeded the limits of our freshwater supplies and have no choice but to seek new ways of managing our water system that focus on reducing demand and using and reusing water much more efficiently. The question is:  will we change our ways in time to save the Bay-Delta and other rivers and streams that provide us with so many benefits, and to save our collapsing aquifers that provide the natural water storage systems that we will need even more in the future? The delta smelt is sounding a wake-up call.  It’s time to stop fighting and heed the call. 

About the Authors

Kate Poole

Senior Attorney, Water and Wildlife Project Director, Water program

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