With a new administration in Washington, DC that has taken a different view of environmental regulation, changes in the Endangered Species Act perhaps seem more possible than in prior years. The effects of climate change threaten to further complicate efforts to conserve and protect endangered species. Is the Endangered Species Act broken? Will the new administration make significant changes to the Act? Should the environment have a water right? At the California Water Policy Conference held at the beginning of April in San Diego, a lively panel moderated by East Bay MUD's Doug Wallace discussed these issues and more.
Seated on the panel for this discussion:
- Gary Bobker, director of the Bay Institute's Rivers and Delta Program. Mr. Wallace noted that Mr. Bobker has a depth of experience, being a genuine, well-seasoned Delta veteran that has fought many battles in the Bay-Delta.
- Holly Doremus, the James H. House and Hiram H. Heard Professor of Environmental Regulation at the University of California-Berkeley and Co-Faculty Director of the Center for Law Energy and the Environment. Her scholarship focuses on biodiversity protection, the intersection between property rights and environmental regulation, and the interrelationship of environmental law and science.
- Buzz Thompson, the Robert E. Paradise Professor of Nature Resources Law at Stanford Law School and Founding Director of the Stanford Woods Institute for the Environment. His research and writing focuses on water law and policy, including water markets, groundwater management and ecologic protection.
- Bob Wilkinson of the Bren School of Environmental Science and Management at UC-Santa Barbara. He has been mentor to thousands of future environmental leaders and was the winner of the first Dorothy Green Award from the California Water Policy Conference.
Moderator Doug Wallace then asked each of the panelists, “Is the Endangered Species Act broke? Why or why not?”
It really is the coup de grace to a half century of failed management in California. That failed management, I think, has been the lack of will to fully implement and exploit the laws we have; to issue rules and policies and to use existing laws to be more effective; and to honesty look at the trade-offs between different uses, human and otherwise, and frankly to waive or weaken the rules when they get in your way. The idea that new regulatory regimes are a panacea for dealing with big problems like climate change, frankly, is not a very appealing idea to me.
Often what's said to prove that the ESA is broken is that not a whole lot of species have recovered. If I was a doctor and 90% of the patients I checked into the hospital didn't check out, I would think I should do something else for a living, right? That's actually the right comparison.
The problem that species that are protected under the ESA have is not an emergency room, hospitalization, and cure and then you are done problem; it's a chronic disease problem. We wouldn't say that diabetes treatment in the United States is failing because lots of people have to do it for the entire period of their lives and I suspect we would not want to give it up because we had not cured people's diabetes.
The Endangered Species Act is also limited in what it can accomplish because a species actually has to get to the stage where it will be listed as endangered or threatened before the Endangered Species Act helps us, and so we also have to be thinking about how do we prevent species from getting to that particular position.
If you look at what has happened to our native fish species over the last 50 years, the percentage of our native fish species who have ended up on the list of endangered and threatened species has increased every decade. Until now, approximately 25% of all of our native fish species are listed as endangered or threatened. In addition to that in the most recent drought, there were 18 species that were on the verge of extinction.
We have to be able to solve the problem of how do we meet all the needs of the state, including the needs of the environment. To do that, we need to use the Endangered Species Act and we also have to look beyond the Endangered Species Act to the other tools that are available.
Then what happens is we don't use them. We have to list species and then we point to the regulatory mechanisms as being the reason that we have to list species. When we look at the things we have to do to deal with species, when you are talking about aquatic ecosystems, you are talking about flow, we hear about how we have applied flow and it didn't work. When in fact what we have done is we have done minor flow manipulations. They don't work, which of course, is the logical result when you do a tiny manipulation and then you say, “Oh, well it didn't work because we need to use something else.”
We don't really look at all of the steps that lead up to having to get to using the Endangered Species Act and we don't really look at the degree to which we don't fully use these existing laws and how that really is the problem that we have, rather than looking at the need for throwing in additional laws that we also won't fully impose or will waive when it's inconvenient.
“Climate change is certain the backdrop for this conversation,” said Moderator Doug Wallace. “Let's suspend for a moment whether everybody in Washington DC believes in climate change. Let's just acknowledge, however, this is a very active Congress in addressing and proposing changes to environmental laws, so what's your read on the temperature as far as the prospect for significant ground-shifting as a result of federal action and legislation?”
I do think we are likely to see some form of death by a thousand cuts or at least very a serious attempts at that. There have been a lot of bills that have been introduced, both ESA-specific bills and general administrative process kinds of bills. I think we should expect to see a push for, demands for higher standards of evidence and for, say, public release of all the data that supports listing decisions. Listing decisions seem to be where most of the action or the attempts at action are going right now.
I think we should expect to see an attempt to get through legislation requiring cost-benefit analysis for listings. I don't know whether that will succeed or not. I think the legislative process is in flux and the situation is in flux and a lot may depend on strength of the Senate filibuster provision. I think we should expect to see attempts to get targeted exemptions, perhaps for individual water projects, perhaps for water projects as a whole, or perhaps for certain specific species.
I think we should expect to see appropriations rider attempts to cut back on citizen’s suits, both in the ESA context and more generally, attempts to make petitions less effective by lengthening the time frame or removing any deadlines for responding to those kinds of things. I think we should expect to see pushes to devolve management authority to states. I hope we can talk a little bit more as we go along about whether that might actually be a productive way to go or not.
Moderator Doug Wallace asked Bob Wilkinson, “Do you see a place where market structure in water rights that is specifically giving a water right to the environment could be a useful tool – a specific water right that's not really negotiable as far as making tough decisions and managing for species and ecosystems?”
The question is, what are the tools we have? Clearly, there market approaches that can be helpful and that's what we are exploring. Just as clearly, there is a science base of how systems function and so there is a question of what's appropriate in a policy sense? This is really a question for a policy arena, in my view, not the scientists. What is a minimum flow that's desirable and appropriate in a system? What are minimum conditions to maintain ecosystems? I have colleagues who argue that the market can handle all of that, just let the market deal with it. I have other colleagues that say, no, we need an established environmental minimum and then use the market above that.
This is a genuine question that is being debated. I think we need to have that conversation. I think at some level absent some sense of what's a minimum requirement, you then get to this ESA question really at the end of the train, then what critters or living entities are going under and that's kind of a bad point to be beginning to sort this out. I would argue to back it up and build resilience in systems. There I think both regulatory approaches and market approaches could help us build enough resilience so we are not back against the wall and into crisis mode.
I would then actually take some of that water, and just like Australia has, I would hand that over to an environmental water trust to manage that particular water. I would do it for two reasons. Number one, I think we are going to have a much more dynamic management in the future in the face of climate change than we have had in the past. I think the experience in Australia is that a water trust that can basically manage the water over time to maximize the benefits to the environment and can buy and sell water is much more capable of acting dynamically in a very short timeframe than our regulatory systems have been capable of acting.
Furthermore, if we are going to hand water rights to the environment, and I think the environment deserves water rights, there needs to be an entity that feels responsible for actually managing that water and has to make the decisions. For those reasons I would set up some type of a state environmental water trust.
NGOs are already playing an amazing role in trying to promote the environment through market systems. One of the best examples of that is Bird Returns, a Nature Conservancy program … what the nature conservancy does is first, they get birders to actually send in information about where they are spotting birds. That is used with an algorithm developed at Cornell University to predict where the birds are going to be in the future and therefore, where we need water. Then they run a reverse auction system with rice farmers in Northern California to get the farmers to bid to keep water on their fields during the periods of time when the birds are going to be there. In the last five years, it has created something on average of about 50,000 acres of pop-up wetlands when the birds need those and I think that's the type of creative dynamic system that markets can be effective at promoting.
I think the problem is the sizing of the regulatory baseline, the sizing of the environmental trust and the relationship to existing water rights and water uses. That's the issue. For me, we have the ability to set a better, more scientifically justified regulatory baseline with tools that we have today.
Setting the regulatory baseline used to seem easier because we thought of ecosystems as static. Here are the measures you need to do to manage ecosystems and then they stay that way. The more that we realize that ecosystems are actually dynamic and always have been, it's just that our perception has changed that we start thinking about outcomes rather than measures. We can actually design regulatory baselines that are based on identifying what are the attributes of viable populations? What are the attributes of functional ecosystems as best as we can say? and begin to tag the baseline to that and vary it over time, depending on how better we understand population viability and ecosystem function.
But you are always going to have a conflict with existing uses that are over-allocated in the system. We are just simply using too much water in California and that's just going to get worst as hydrological conditions change. The real controversy that Buzz sort of skirted around in the example from Australia is not the water trust; it's the reset of the water rights. It's beginning to actually look at is California’s water rights system adequate for the 21st century and beyond?
It's really not. We don't touch it. It's such a third rail because it's so politically fraught. Everybody here is familiar with the reasons why changing California's water rights system is just so politically unpalatable. But managing groundwater was politically unpalatable, too. We are going to deal with it sooner or later. My understanding of human behavior is we will deal with it later, so we will deal with it after we have done the maximum damage to our ecosystems and our existing beneficial uses. I hope I'm wrong.
The major problem with the Environmental Water Account is that it did not have a dedicated amount of environmental water. Each year we had to depend upon the legislature to come up with money to go out and actually buy the water and that is simply not sustainable. I will go back to my very first point, which is the first thing you have to do is to establish the right itself and there are two ways of doing that. One of them is through the regulatory system; we actually have a variety of laws in California and at the federal level that we could use to create those through a regulatory mechanism. The other approach is Australia's approach; we can buy those water rights. So far, we have not been willing to make either of the two commitments.
Gary has talked about the regulatory side and on buying the right, which actually would be my own preference. We buy a lot of it. Australia, if I remember correctly, spent about $3 billion to buy the environmental water. Ultimately, they have about 2 million acre feet that they hold today as a result of that. Proposition One put aside $200 million a year. We have something in the way of a 15 fold difference to make up if we are going to go that particular direction.
If you had a larger water trust, then you do have cycles and, of course, that's exactly what Australia did. It forced people to actually sit down and plan ahead and to say, “What are our goals? What are our priorities? What happens during various types of water conditions?” It would be nice to do that whether or not we even have a water trust.
“I have a nice can of worms I would like to open up,” said Moderator Doug Wallace. “I was springing off of the comments from two senior water officials yesterday, commenting about the protest against the state board’s proposal to designate a certain percentage of true natural flow and arguing that it's really more about habitat, that you just don't need all that water to get the results you want, we are lacking environmental metrics and so forth. I wanted to give a chance for anyone to respond to that, but try to keep it focused on penetrating through the logjam of disagreement about this. Is there a better place on the other side of this argument to get to that you can think of?”
One thing to say right up front is that pollution makes a difference. It's a stressor. Land use and sprawl make a difference, so this is not any one cause in isolation. That goes to flows, the amounts of water, the quality of water, the timing and all the rest as we think about water management. It is necessary. Think about all of the stressors on the system and then think about climate change impacts, temperature, variability and flows through extreme events and so forth as additional stressors. They are compounding, they are working together sometimes in very negative ways. We really have to think about that whole context as a starting point for this.
I think that then leads you to many ways to take pressure off to build resilience systems that take the pressure off species. I like to think of it as how do you avoid getting them listed in the first place versus waiting until they are on the list. They are endangered and then you are into this crisis mode. Of course, the law calls for getting them off the list not by going under, but by getting healthy again. Looking for strategies to build back up resilience of those systems so they get off the list is really ultimately what we have to think about. We have to think about the whole package.
The reason that many of us in the environmental and science and regulatory community focus on flows is because in an aquatic ecosystem, it is the master variable that controls conditions throughout aquatic environments. Aquatic environments are wet. Flow affects how wet they are and what that means for different habitats. If you want to talk about doing habitat restoration, you are usually talking about floodplains or wetlands or some other kind of riparian or aquatic habitat and the flow regimes are extremely important for the nature, the extent, and the quality of those habitats.
Water quality is obviously intimately connected to the flow conditions in the system. Flows move all kinds of materials, biological and inorganic, so when you want to talk about sediment transport or the food web, they are integral to understanding the effects on aquatic ecosystems. I could go on and on. It's baloney to talk about flow versus non-flow. If flow is important, what kind of flow is important?
There's a lot of talk about doing things like an unimpaired flow approach; in other words, mimicking natural flows does not make any sense and that we want that functional flow. In theory, there's no argument with that. There’s a hierarchy that many sciences recognize who work on flow. You want to identify causal mechanisms, so if you can identify causal mechanisms, you have flows that fulfill the functions that address those mechanisms.
You know what? We don't understand complex aquatic ecosystems perfectly. I know that comes a shock to people, but that's the fact. For some things, we understand the causal mechanisms. For instance, the floodplain function affects on migrating salmon and some other fish. For others, a lot of other species and habitats we don't, so we look at correlations, which are very strong in this system. The correlations between flow and the biological response are extremely strong in the estuary and the Central Valley watershed.
When we don't have correlations, we look at historical relationships and historical conditions. When we don't have those, we take the best educated guess we can. Because we are dealing with large aquatic ecosystems in the estuary and the watershed where we do not have perfect understanding of these causal mechanisms, mimicking natural conditions is the best way to amalgamate all of these things. It's not perfect and probably can't be universally applied, but to talk about how we should only do functional flows underestimates the complexity of the system that we are dealing with.
If you are going to condition doing any kind of environmental restoration on a perfect understanding of causal mechanisms, you're not going to do anything, but the fact is we function every day without understanding causal mechanisms. You walk from one end of the room without our understanding the causal mechanisms behind gravity.
I think one of the things that we need to be doing is thinking more broadly than we have about how we are going to ensure the recovery of our fish species because you are absolutely right. We need both and we have done much better on one side than we have on the other. I think we have done much better on the water side than we have on the habitat side, for example. There's also I would say limited regulatory resources. In other words, how much you can put politically on the table to get what you want or money to go around. On that, there might be situations where I think we could also think about trades between the two.
When you hear arguments about things like predation; one of the biggest arguments that I have heard from many water districts and water users has been that when you insist on things like flow, you are not looking at predation and its huge impacts on the system. Let's forget the fact that in natural situations, predators eat most of the critters anyway and it’s only really a problem when the populations are really depressed. Most studies have found that if you try to deal with predation without changing the habitat conditions, your predation control mechanisms don't work. What happens is that low flows, they are ineffective and you just get replaced by other predators.
Again, you can't tease out this stuff and the fact that it's easier to manipulate the flow knob does not replace or substitute for the fact that you have to deal with the flow issue if you want to make any of these non-flow measures be effective.
I just want to say also that I think the debate between whether we should focus on unimpaired flows or on functional flows is also a debate about the politics of the rhetoric; when you talk about unimpaired flows, it's easy to say, “Well, that seems really unrealistic.” To make it sound like the environmental interests are asking for actual unimpaired flows as opposed to some small proportion of unimpaired flows. But I also think that, again, this comes down to what our goals are, which we are often not all that clear about.
One of the things that the State Board has said is that we should focus on flow in the tributaries, as well as in the mainstems. Whether we think that's important or not depends on our view of what the water system is, what the aquatic system is that we are trying to protect and that's something that's worth talking about it.
Audience question: I’m with Las Virgenes Municipal Water District. We have a dam, which was built at the end of the creek in 1910, which stopped the southern steelhead from coming up through Malibu Lagoon, which only opens up at high flow events. We are required by ESA in this era of climate change or warming climate to put a lot of water in the creek for fish that don’t exist. I’m wondering if … It’s an outlier, no doubt about it, but it’s one of things that is a real problem to us, costing us about a million dollars a year. We’re a small district. I wondered what comments you could have on this question?
I think we need to be very careful about saying that climate change means species can't be saved and therefore, we don't have to try anything, but that's in part because that's too easy. It can be hard to know whether something's actually doomed, especially given the multiple stressors effect. Also, because that's too narrow of a focus on the species rather than on the entire systems.
I wish I felt like we had better structures for having a real conversation about what our environmental goals are going forward and also what our responsibilities are. I think we need to think both about what it is we are trying to say, but also what should we expect and demand of ourselves. One thing I think we should demand is that we do what is feasible to reduce our footprint on the environment. Of course, we can argue about what's feasible, but certainly for me that means not using water in ways that we don't need to.
Audience question: I agree with you in terms of we need to be really careful about this, but even going back into the Bay Delta System, where even you have potentially species competing for these resources, I think there is mounting evidence that this is going to be a really challenging thing to deal with. Climate change, which is confounding, other stressors, I don’t think there is any argument about that, but how do we start to use ESA to accurately and fairly assign responsibility for species management, given that what we found in the drought was that we didn’t have enough to around and we have species now in pretty poor condition? This is something I think we can expect to see in the future. If ESA is not broken, then how do we use it now to deal with this problem?
I'm not going to try to convince you or other folks that it's the right choice, but let's talk about what really happens. During the drought, we ran into problems supposedly with trade-offs between different species. The state relaxed flow requirements for species in the Delta in order to save water upstream to preserve cold water for salmons. They wound up dropping cold water pool in order to increase deliveries to senior water rights holders in the Sacramento Valley and then they ran out of cold water in Shasta.
That was not a conflict between salmon and smelt and other species in the estuary. That was the decision to favor consumptive uses over these species. Whether do you think that was good, whether you think that was bad, let's be honest about what really happened. When we talk about choosing between species, I think we are jumping a step in the logic chain here and we are not recognizing the choices that we are making that set up these choices between species. I don't buy that premise. It's a real problem.
Moderator Doug Wallace asks, “The question in relation to climate change and ESA compliance is whether mitigation of greenhouse gas issues should factor in somehow?”
In water, a lot of the opportunities are source switching, moving around between one source and another where you have that opportunity, but also in habitat restoration strategies. Part of this, going to this question on the specifics on the species, is looking for ways to reduce temperatures in systems that are having temperature problems. That can in many cases be both an emission reduction strategy. Take a lot of the watershed strategies, starting in the upper watershed and working down that you actually get a win-win-win all the way down the line. I think we really have to start looking at as a way to get both and where possible and then get the adaptation and mitigation on the sides of that.
Those choices are very difficult. They end up being choices that are made as a matter of state law primarily in the water context. I think we are at a time perhaps that we are having to confront those questions and there are issues about what's the role of priority versus what are the role of other factors in making those kinds of choices that we are increasingly having to confront? Those are not ESA questions.
Moderator Doug Wallace then asked the final question: How would you frame up the discussion we need to have about agreeing on goals, given some very tough choices and trade-offs, notwithstanding the fact that humans are the dominant apex species?
Secondly, we need to have a much more rigorous and honest discussion about risk. How much risk we are going to tolerate and how we are going to share risk? Because we don't have good risk-sharing formula in the way that we manage now. We need to share risks a little bit more equitably and then right upfront going into droughts, coming out of droughts, etc. We don't do that right now. We tend to teeter back and forth.
Third, not mitigation but adaptation. Clearly, we have the climate change tsunami coming. I personally believe that much of what we talk about when we talk about doing habitat restoration in the Central Valley that we can actually design a habitat for a warming climate. We can actually do things like look for habitat that has elevation, so we can accommodate some level of sea level rise. We can look at where the snowpack is likely to linger and say, “Okay, those are good places to invest in making sure that cold water species can thrive.” All kinds of things we can do to anticipate those things.
Ultimately, we need to look at the water rights systems because we’re simply breaking the bank. If we don't, what's going to happen over time … I think it's going to happen inevitably no matter what is that Californians are becoming better water managers. We are reforming the way that we manage water. The issue will be will we do it in time to save the ecosystems that we love or will we just wind up with a set of Potemkin Villages here and there that the nature conservancy manages and the rest is screwed? That's kind of the choice that we are facing.
The very first thing I would do is to plan ahead rather than to wait until we are faced with a crisis to figure out how to do without. A lot of the solution to me is a matter of process. How do we actually figure out a process that does engage all of the relevant stakeholders in a way that can create a common vision moving forward?
South Africa has actually been doing this over the last 10 years. They have a system in where every single watershed, they have an environmental reserve. The way in which they create that environmental reserve, they start out with the scientists. The scientists develop a variety of scenarios and tell you what's going to happen under each of those scenarios and then they have the stakeholders sit down and work through those scenarios and ask themselves how can we possibly improve some of these scenarios, but then which is a scenario that as a whole is our vision for the future going forward? I actually think there is a way under the Endangered Species Act to get that done.
The last is to really think about multiple benefits. In so many cases, we are really good at figuring out the cost or whatever action it is and then tying that to a benefit. But if we look at smarter approaches that give us three or four or five benefits against a cost, we are starting to see new opportunities for investment. We are going to need to do that, even if Uncle Donald throws $1 trillion at infrastructure, we are still going to need to be thinking about smart ways to spend money. I think those three would be a starting point.
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