Endangered species and drought: Can we break out of the Endangered Species Act death spiral?
Professor Peter Moyle, former Deputy Secretary of the Interior David Hayes, Professor Richard Frank and others discuss the impact of the drought on the state’s endangered species
In April, the UC Drought Science, Policy and Management Summit drew upon the extensive brain trust throughout the University of California system, bringing together speakers from eight UC campuses to the state capital to explore ways to mitigate the effects of the current drought while preparing for future water shortages. During the summit, panelists discussed the challenges and opportunities that the drought presents to agriculture, rural communities and cities, as well as the consequences and impacts of the drought on the economy, the environment and endangered species.
A theme throughout the day was that drought is part of life in California, and what we’re experiencing is not uncommon. “We will not be able to drought-proof California,” Professor Jay Lund told the crowd of about 300. “We’re not exactly sure what those droughts will be in the future, but we know they will happen. We should be prepared to have these fairly regularly.”
Professor Lund recalled how after the drought of 1988 to 1992, many more species became listed. “During this drought, we’re seeing a lot of emphasis with some saying we need to soften some of the environmental flows so we can export more water and have more deliveries,” he said. “I think there’s an unfortunate probably that if you get what you want in that situation, you might be seeing additional endangered species being listed, and additional long-term reductions in agricultural and urban water supplies. I think we all should be thoughtful and a little more circumspect in trying to get water in the immediate term.”
The impact of the drought on endangered species was the topic of an afternoon panel featuring Professor Peter Moyle with the UC Davis Center for Watershed Sciences, former Deputy Secretary of the Interior David Hayes, now with Stanford Law School; Professor Richard Frank with UC Davis Law School, Joshua Viers with UC Merced; and Professor David Sedlak with UC Berkeley. The panel was moderated by Ellen Hanak with the Public Policy Institute of California.
During the presentations, panelists discussed many facets of drought as it impacts the state’s endangered species and the Delta, including the need to develop a smart water strategy for the environment to get ‘more ecological pop per drop’, the state’s changing hydrology, and why the Endangered Species Act is not particularly effective during droughts.
Professor Peter Moyle, UC Davis Center for Watershed Sciences
Peter Moyle began by saying he would make three basic points. “First, native fishes and aquatic ecosystems that support them are exceptionally vulnerable to drought. The second point is the problems created by the current drought for fish and aquatic ecosystems are just a harbinger of things to come with climate change. Third, many drought related conflicts often stated as farms versus fish or something like that, can be avoided if we invest in statewide conservation, but we really need to develop a smart water strategy for the environment.”
He then went into details. “I want to emphasize the native fishes and their ecosystems are especially vulnerable to drought,” he said, listing some sobering statistics. “Sixty-three percent of the 130 native fishes of California are found only in this state, and the rest are shared only marginally with other states, so this means that we have lots of endemic fish and it means these are our problems. There isn’t going to be a refuge for these species someplace else, we can’t shift the responsibility elsewhere. Protecting out native fish which represent our native ecosystems is really a California problem.”
“Seven species have already gone extinct, and 80% of the rest are facing extinction by the year 2100 if present trends continue,” he said. “That is a lot of potential endangered species. We already have 27 species of fish on the endangered species list in California, and that is every sign that those numbers will increase. While native fishes are adapted for surviving periods of natural drought, the development of California’s water system has created a perpetual drought conditions for many of these species, so that a real drought can push them over the edge. This the problem we’re facing right now.”
“Although the native fishes are increasingly stressed by drought conditions, their flow requirements are the first things to be abandoned in drought relief programs, as was recently demonstrated by actions of the US FWS and the NMFS in the Delta,” he said. “And while such actions may be needed, they do reflect a relatively poor preparation for drought conditions, even though everybody knows droughts are inevitable. The problem is that once better conditions return, the imperiled fishes are unlikely to receive any extra attention or any extra water. Whatever you need to population recovery, you don’t see it happening once better conditions return.”
“The result is that every drought cycle, the native fishes have less opportunities to recover enough to survive the next drought, so as a result, more fishes will become listed under the endangered species acts,” he said. “This is a pretty bad way to manage these resources. It just generates conflict.”
Secondly, the problems created by the current drought for fish and ecosystems are a harbinger of things to come, he said. “California has suffered worse droughts in the past, and will suffer worse droughts in the future. Climate change then increases the likelihood of droughts. The models indicate not only will there be less water, but water in our streams will be warmer, peak flows will occur earlier, and many streams will be inclined to dry up altogether, even during non drought years.”
“The analyses that my colleagues and I have done indicate that climate change will accelerate declines of native fishes with extinctions likely during periods of drought,” he said. “Then in turn, tolerant non-native fishes such as carp, catfish and sunfishes will increasingly dominate the remaining waters. This is the choice we’re making. We’ll still have fish; it might not just be the right kinds of fish.”
Mr. Moyle said that this depressing view assumes that we do not take any positive steps but just continue on our present course of action just reacting to crises, but there are things we can do to perpetuate native fishes and ecosystems.
“The drought has exposed our complete unpreparedness to do drought management for fish and wildlife, and this is the usual situation that when the going gets tough, the environment loses,” he said. “I agree that the environment represented by fish has to take a hit during the drought, just like every water user, but it should not be the sacrificial lamb for our failure to adequately plan for providing environmental water during dry times. I think this failure stems in part from our outmoded allocation system.”
“At the very least, we should figure out how to use the little water available for fish and wildlife in smarter ways so we can minimize the damage,” he said, and he gave some examples:
- Re-regulating rivers by applying the natural flow regime concept: “This can conserve water at relatively low water costs,” he said, citing Putah Creek as a good example.
- Place a high priority on protecting and restoring spring-fed streams: “Investment in restoring flows to the Shasta River will have important consequences for the whole lower Klamath River salmon populations, as likewise increasing efforts to manage flows in Battle Creek can help provide a refuge for winter run and spring run Chinook salmon. These spring fed systems are very special places that could have big consequences if we manage them right.”
- Focus conservation efforts in coastal regions that are salmon strongholds: Places such as the Smith River, south fork Eel and Blue Creek. “All native fishes need a refuge somewhere, whether its artificial or natural. And special efforts need to be made to improve the habitats, acquire water rights, or make other protections to drought proof these refuges as much as possible.”
- Reestablish native fishes in urban streams and similar environments using non-standard sources of water.
“Overall, our actions should be part of a systematic statewide program for aquatic conservation, which is really lacking now,” he said. “I would encourage such a program to embrace the concept for reconciliation rather than restoration and preservation as a theme, and this recognizes that all California ecosystems have been altered but that we can manage these systems in ways that benefit our society and native fishes and organisms.”
“I like to think California can show the rest of the world the way to do this, just as our water supply is held up as a model for the rest of the world in the past,” Professor Moyle concluded.
David Hayes, Stanford Law School
David Hayes was the Deputy Secretary of the Interior with Bruce Babbit in the late 1990s, and also served in the Obama Administration, up until July 2013. He is now a Lecturer of Law at Stanford University.
David Hayes began by saying he would give some brief and necessarily generalized observations with a little bit of a sense of history. “I have three general observations,” he said. “One is that drought periods heighten attention on water exports and species impacts in the Delta, and extended droughts hammer both water users and salmon and smelt and other species. Peter Moyle talked about the salmon, but water users south of the Delta are hammered by drought as well.”
“The second observation is that policy makers have a very short attention span when it comes to water,” he said. “Droughts have been the time when there’s been a catalyst to make some change. Similarly, whenever we go right back to a normal or wet year, all of a sudden we go back to sleep.”
“The third general observation that I want to make is that although there’s a lot of focus on endangered species and specific species in particular, like the Delta smelt and salmon, there’s a trend towards talking more broadly about the environment and that’s a positive trend,” he said. “Endangered species are the whipping boy on both sides but in fact, they should become a surrogate for a broader discussion and hopefully will.”
The Bay Delta is the place where the crisis between drought, species, and water users is the most dramatic, he said. “Historically for the last 20 years or so, we have been exporting together from the federal and state projects an average of about 5 MAF a year, pulled through the Delta by the world’s largest pumps to get water south of the Delta. That is not friendly to the salmon who are trying to migrate past the streams with reversed flows, or for the indigenous fish, the smelt.”
There is an emerging consensus that the status quo water conveyance system is unsustainable from an ecosystem perspective, he said. “The CalFed formula which, for ten years and hundreds of millions of dollars, assumed that we could keep with the current conveyance system with an environmental water account to make sure there was enough water still to have outflow required for species and environmental health generally, and big money on restoration and a unified governance structure,” he said. “What we found was that it did not work – it did not appreciably improve the Delta export conflicts. We can’t make due with the current system. … There is a new emphasis to get away from number one, the current infrastructure and look at conveyance again, and number two, recognize that we’ve got to hit both reliance and infrastructure, and that brings us to the BDCP.”
“So here’s the history lesson,” he said. “Number one, drought years are a catalyst. Number two, we’re moving away from the ESA to a broader concept of sustainability, and three, we need to deal with Delta conveyance. … We’ve got to do something about conveyance, and if anything, the last five years has underscored that.”
Joshua Viers, Associate Professor, School of Engineering, UC Merced
Joshua Viers began by saying that the idea of normalcy in California is something that’s very abstract and fairly elusive, and he had some slides to point that out.
In regards to water year types, we oftentimes hear the term, ‘normal water year,’ he said. He and his colleagues wanted to investigate the idea of water year typing a little more thoughtfully, so they looked at two major indices used in the state, the Sacramento Valley 8-station Index and the San Joaquin 5-station Index. He then presented a slide showing some of the results of their investigation of the San Joaquin Valley Index. “That index, in fact, has no normal,” he said. “There are five major water types: wet, above normal, below normal, dry, and critically dry, so by definition there is no normal in California. But the distribution of different water year types was relatively uniform, so out of those five types, there was a fairly equal probably of having any one of those.” He noted that this is based on the assumption of hydrologic stationarity, which is to say that the future is likely to be represented by the past and all of our planning can go forward based on that assumption.
“By using an ensemble forecast of different GCMs and different emissions scenarios, we were able to show that by mid-century, we’ll be looking at a bimodal distribution for the San Joaquin Valley, which is the extremes of either wet or critically dry,” he said. “By the end of the century, we’ll be looking at a three-fold increase in the number of critically dry years.”
“The important point here isn’t so much whether you believe those numbers,” he said. “It’s the very fact that we have an archaic and inflexible system for divvying up the hydrologic record, and in a non-stationary climate, it’s that level of inflexibility that will lead to mal-adaptation. A case in point is that the actual formulation for this index heavily weights the snow runoff period, and what we do know with climate warming is that the amount of snow will be far less than the amount of rain, even if precipitation were to remain constant, which is to suggest that there will be a trend towards dry and critically dry years into the future. The one thing that we do know is that in fact the environment loses in those dry years.”
Mr. Viers said that he and a colleague also tried to project forward and look at where the water was going, and so they examined the state database for water rights. He noted that the database does not include pre-1914 rights nor riparian rights. “There are over 31,000 water rights that have been allocated throughout the state, post 1914, and they continue to accumulate today,” he said. “In fact, we’ve allocated 370 MAF of water on paper, yet about 70 MAF is what we get in surface runoff in a good year.”
He then presented a slide with a map that showed the cumulative flow coupled with the cumulative faced value of those water rights. “It tends to suggest that in some cases in the state, we’ve allocated 1000% of the full natural flow, and if you look at the Delta that’s highlighted in red, it’s no surprise that we have the problems that we do today.”
“There is hope, however, and it has to do with information,” said Mr. Viers, noting that there is now new software available that can map the ranges of native and non-native fishes in California and presenting a slide with the results. “This map shows the hotspot of that diversity, both native and nonnative, and of course that’s in the Delta. What this software will allow us to do is to look at what we’ve lost, the extirpations and extinctions in the state of California. Up until this point, we haven’t had the information to do anything about it, so if we were able to combine water rights information in terms of allocation with availability with where potential hot spots are, such as this map shown here, we are actually able to combine where we know sensitive species are with dams and we can begin to identify the areas that we need to do some work.”
“We identified 380 dams that are in the range of a sensitive specie, and about 82 dams with three or more sensitive species,” he said. “These are the ones that we could do a much better job of flow management, which is to say that if we were to look at the natural flow regime, in terms of the magnitude, timing, duration, frequency, rate of change, that we could manage our water more effectively.”
“I want to introduce the idea of environmental water use efficiency,” he said. “You’ve heard this in the urban sector, you’ve heard of it in agricultural sector … in my opinion, we need to do a much better job in getting more ‘ecological pop per drop.’”
Richard Frank, Professor of Environmental Practice and Director of the California Environmental Law and Policy Center at UC Davis
“In my view, the Endangered Species Act is the most controversial of our major federal environmental laws and an enormously important statute,” began Richard Frank. “I’m a big supporter of the ESA because it’s had a major positive impact in bringing a number of plant and animal species back from the brink of extinction and actually has restored to some level the ecological health of a number of species, but when it comes to drought, the ESA is not a terribly effective tool.”
He said there were four reasons:
- The ESA is, by its nature, reactive rather than proactive. “The formidable protections of the ESA don’t kick in until a particular plant or animal species is right on the brink of extinction, and to continue the health care analogy, what’s really needed is a holistic system of preventive care, which is really not feasible under the ESA, ” he said.
- The ESA is, by its nature, under-inclusive. “It is focused on a single species by single species approach to management and protection as opposed to ecosystems and protection of critical habitats that don’t kick in unless it’s in connection with the listing of a particular species,” he said.
- The ESA has limited flexibility. “The Clinton Administration utilized what limited flexibility there is in the law under Section 10 to really expand the protections available, and that has provided some flexibility and parenthetically some cover against the political controversy of the ESA in providing species management, but for reasons I don’t have time to get into, those Section 10 provisions are not terribly helpful or relevant with respect to drought conditions,” he said.
- The ESA is a big cumbersome statute with big cumbersome and lengthy proceedings. “One example is the so-called Delta smelt or Wanger decision and litigation which was in the federal courts for probably a decade and just culminated in a 168 page opinion of the Ninth Circuit Court of Appeals on Delta smelt and ESA science, which leads to a far from conclusive resolution of these issues in the Delta context,” he said.
Although the ESA is not a useful tool with respect to drought management, we do have other tools we can use in our legal and policy toolbox, he said, giving three examples:
- The CVPIA is a better example of a drought-resistant law: “The CVPIA enacted by Congress in 1992, which dedicated some 800,000 acre-feet of water per year in the Central Valley to species protection, fish and wildlife.”
- Fish and Game Code Section 5937: “At the state level, it’s an often overlooked and under-enforced law that requires dam operators up and down the state to allow sufficient water flows through or around their dams to permit fish migrations.”
- Executive orders: “In California, the Governor has substantial power to address drought circumstances through executive orders.”
“The key short-term challenge with respect to these laws in my opinion is to make sure that those proactive environmental laws are not ignored or waived during periods of drought,” he said. “I think it was President Lincoln who said that even perfect laws without enforcement are merely good ideas. In the long term, we need to affirmatively plan through these and other tools to protect resources in advance so that we are not left with the circumstance of more species and more habitats being stressed and more listings, a feedback loop that would be most unfortunate.”
David Sedlak, Professor and Co-Director of the UC Berkeley Water Center
“Water is a complex systems problem,” began David Sedlak. “UC and the universities of the state of California have always supported the quality of life that we’ve come to know, whether it’s the gold rush or the wine industry or Silicon Valley; the innovations that come out of the university lay the foundation for the economy of the state. I think it’s time for us to see water in the same lens and to see the systems solution to water in the same way.”
“We manage the environment for endangered species already, but we do it badly,” he said. “We do it badly because we typically focus on only one dimension – the quantity of water. Sometimes we focus on the habitat, and sometimes we focus on the water quality, but we do it in silos and we treat those silos as black boxes. We just hope that the environment does what it wants to do for us. … I have hope that there’s room for innovative research that will open up those black boxes and that will connect those silos to a systems level solution that will allow us to do more with the water we have and the resources we have.”
He then drew on an example from Southern California where the natural environment and the infrastructure work together. “The Santa Ana River in Southern California is an effluent-dominant river, and that effluent-dominated river gets recharged and it becomes a drinking water supply for people in Orange County,” he said. “The Orange County Water District recognized that and a number of years ago, they started thinking about the Santa Ana River and the Prado Dam. … They said there’s a wetland there that should be improving the water quality, but it wasn’t until my colleague Alex Horn got involved with the OCWD and conducted research on how to redesign that wetlands so that it would remove nitrate that they actually realized the full potential for water quality improvement. Now half of the Santa Ana River flows into the Prado wetlands and the nitrate concentrations decrease because there is a constructed managed wetland.”
“Recent research has shown that we can redesign those wetlands to remove pharmaceuticals, hormones and personal care products as well as nitrate at the same time by opening up those wetlands to sunlight and letting photochemistry and microbial activity degrade the contaminants,” he said. “That’s a wetland, but now it’s a wetland that is managed and informed by science. … There are already several endangered species that are there that wouldn’t be there if the wetland weren’t there behind the dam … how it’s the habitat we support, how it’s the restoration of the ecosystem that compliments the water rights and the water quantity. I think we can help endangered species get through droughts more effectively if we understand the multiple dimensions of the problem.”
“So I’d like to suggest that going forward as UC Researchers, we think about the way in which we can look at natural systems, whether managing the Delta for habitat creation and improvement, or our urban streams, and actually managing the riparian zone, managing the natural systems for water quality improvement, habitat creation, and ultimately the endangered species that we hope to have.”
Panel moderator Ellen Hanak asked the technical experts on the panel, if we could anticipate that we’re going to have a drought next year or in two years, how much of a heavy lift is there to put in place a smarter strategy for making sure that there’s less environmental harm next time around?
Joshua Viers: “When it comes to getting more ‘ecological pop for the drop’ in California water management, most, if not all, of our surface water resources are heavily managed. I think there’s been some illusion to this idea that there’s a lot of environmental water out there, and certainly there are a lot of coastal rivers and some rivers on the North Coast which are largely unregulated, but for the most part, all the rivers in the California are regulated to some extent. That’s wherein lies a bit of a challenge from a policy perspective. Ecologists can certainly make recommendations as to flow regimes to meet the natural history and life history requirements of particular species, but the policy implementation becomes a little more challenging. … In a wet year, the environment tends to win, but in a dry year, we’re going to continue to meet our deliveries, we’re going to export, and we’re going to continue to generate hydropower, so when we have a dry year like this year, when every drop does count, it’s important to look at things like the recession rates of being to step down the releases in such a way that it just doesn’t turn off the water completely for some of these species. The tradeoff with that is lost power and revenue. What we’ve recognized is that in some systems such as the American system with the Placer County Water Agency, they will identify a block of water that they are willing to give up and then they look to scientists to say how do we shape this hydrograph in such a way to meet the needs of the species, and I think that’s a thoughtful way forward.”
Peter Moyle: “In the short run, I can think of several dozen rivers and streams that could be managed as a highest priority for native species and then the natural ecosystems below them. It seems to be a very slow process to get things done. Battle Creek, which is and should be on everybody’s high priority list as a restoration site for various species of salmonids in the Central Valley – trying to get that restoration to work because it involves dam removals and a whole bunch of different things. It’s very hard; it’s very complicated. It would be wonderful to have that completely online as a site for protection of winter run and spring run Chinook salmon now, but it’s going to decades before its finally finished, and that’s one of the problems we are facing. We are in a crisis situation right now, and yet we can’t move fast enough to take some of these proactive measures as effectively as we should.”
Ellen Hanak then asked the lawyers, … strongholds, refugia – it involves making come choices that a rigid interpretation of some of the key environmental laws like the ESA or the Clean Water Act (CWA) might not look kindly on. Do we look at reforming those laws or are there ways that we can adapt administratively so we are getting more ecological pop per drop?
Richard Frank: “I think efforts to revise or reform the ESA to address these concerns are a fool’s errand right now in the current political climate because it’s just not going to happen. … In 1973 when the law was passed, my recollection was that it passed unanimously in the US Senate and with only 3 ‘no’ votes in the House of Representatives. It was not until the snail darter case, TVA vs. Hill in 1978, that it began on this track of becoming the most polarizing law, so I don’t think the ESA is going to be helpful in this regard. CWA has more relatively more carrots, incentives, along with the sticks than does the ESA so that has some potential, but the CWA is a water quality statute, and as scientists ably pointed out, a lot of these issues are not just water quantity questions, they are water quality questions, so to that degree, the CWA might be helpful. When it comes to water allocation and revising those systems, in California and throughout at least the American West, those are systems legislated and administered at the state level. I agree with many of the speakers here today that we have a largely dysfunctional water rights and water allocation system in California, and I think in terms of long range planning, that’s where we really need to focus our efforts to bring those laws and their implementation into the 21st century so they can be more helpful tools to address what may be an era of to one degree or another, of permanent drought.”
David Hayes: “First of all, the ESA is, even with the current Bay Delta, is not the only driver here. Water quality is a huge driver. The salinity levels are what has prompted the State Water Resources Control Board to talk about a lot of curtailments and certainly salinity has a factor for the species, but it has a factor for the water quality, for the drinking water intakes in the Delta, for the cities, and also for ag. I agree with Richard, the ESA is not going to get amended, and I wish everyone would accept that. I don’t think it has to be amended. What needs to happen though is, and FWS and NOAA as administrators of the ESA don’t want to be in a situation where they have to say no, we’re shutting everything down, but if there’s not a plan, if there’s not a path toward things getting better, often they feel cornered and that’s where we’ve been recently, and that’s why I at least am encouraged by the BDCP effort because if there’s a plan to get everything better, and it’s got to be comprehensive … then you provide some running room for the regulators to say let’s give this a chance to work. But if we don’t get that, what you get are the really lousy biop wars and runs to court, and if we’ve learned anything, I hope, it’s that the courts are not our solution here.”
David Sedlak: “I think there’s a time and a place where maybe temperatures may be too warm for the range of some of the species and habitats will disappear whether we like it or not, and I think if we focus on saving the last individual seeing the direction that climate change is going, we may be penalizing other efforts to do laudable ecological restorations.”
Joshua Viers: “I certainly try to think of all the different ways we can bring the policy apparatus to solve some of these problems, and those problems are providing water for humans and humans are part of the environment, so a lot of the work that we’ve done has shown that the infrastructure that’s in place is actually the cause of some of our problems, such as dams; we’re probably going to have to repurpose in some way to save the environment. We’re going to have to manage for cold water below dams to manage some of these species and ecosystems. That’s another competing dimension that we’re going to … certain rivers specialize in certain things … we ask them to do everything. They provide water, hydropower, recreation, fishing, swimming for me on a hot summer day, but perhaps some of them are better at doing other things, being specialized to one thing well, such as providing hydropower on the Feather River, perhaps it’s providing cold water for salmon on a different river, and that’s going to require coordination and teeth knashing, but we may be at the point where hard decisions need to be made.”
For more information …
Watch the panel at California Channel here: Endangered Species and Drought