By Gary Bobker, Senior Policy Director at Friends of the River, and Jon Rosenfield, Science Director at San Francisco Baykeeper
Earlier this year, two eminent fish researchers wrote “California … is a world leader in having its endemic freshwater fishes likely to be driven to extinction by the end of the century.” We know the reason. California habitually fails to enforce environmental laws designed to protect our aquatic ecosystems. Following the state’s lead, federal agencies skimp on environmental safeguards and waive the meager protections they do offer any time protecting the public’s fish, wildlife, waterways, and water quality, gets in the way of diverting more water to meet California’s seemingly unquenchable demand.
For example, in late August water diverters and their allies in Southern California and the San Joaquin Valley wrote letters to state and federal leadership requesting “suspension” of this year’s planned action to allow more outflow from the Delta to San Francisco Bay in the fall (known as “Fall X2”). The Fall X2 action is a required part of the federal (CVP) and state (SWP) water projects’ endangered species permits.
These requests telegraph how the state and federal agencies and their water agency clients plan to “adaptively” manage in the future, cherry-picking data to pursue offramps from regulatory requirements while bypassing rigorous science review. In their letters, the big water diverters and their allies asserted that recent science proves that supplemental fall outflow is ineffective in protecting Delta Smelt. That’s not true. Although the latest research indicates that additional summer outflow may be even more important than fall outflow in boosting population growth, recent studies show that enhancing fall outflow was and continues to be important in preventing extinction of Delta Smelt. Neither the Fall X2 action nor any other component of regulatory requirements that have already undergone extensive scientific peer-review (and judicial review, in this case) should be modified outside the scientific and legal and public framework for doing so and with public review and input.
The recent special pleadings for waivers to endangered species requirements are only the latest instance of water diverters pressuring fish and wildlife agencies not to enforce regulations. Their track record in getting environmental protections waived is quite good. In the 10 years between 2014 and 2023, the state and federal water projects requested and received waivers of flow requirements and export limits six times, with devastating consequences for the Bay-Delta ecosystem. So, while the big Central Valley water diverters might say they support some improvement in flows for the environment, they want to be excused from compliance with state and federal Clean Water Act requirements for flow in drier years (e.g., 2014, 2015, 2021, 2022), intermediate years (2016), and even wet years (2023). Now, in a relatively wet year that followed a very wet year, they want a waiver of Endangered Species Act requirements. The fact that the Fall X2 action is only triggered in the wettest years is apparently irrelevant. (Curiously, these same water diverters neglected to write earlier this year to request increased summer Delta Outflow from the Delta, even though they acknowledge that this kind of action is needed to protect endangered species.)
Ultimately, rather than rely on waivers the water diverters would prefer to replace real protections backed by laws like the Endangered Species and Clean Water Acts with “Voluntary Agreements” (VAs) with the state. Originally proposed as an alternative to stronger regulatory protections for fish, wildlife, and clean water as part of the Water Board’s update of the Bay-Delta Water Quality Control Plan, the water diverter community has managed to insert the VAs into proposed revisions of endangered species permits for the long-term operation of the CVP and SWP. At best, the VAs would provide little or no additional instream flow in most years, and they provide none of the improvement in temperature or other conditions that science indicates are essential to maintain and recover native fish and wildlife.
In fact, Reclamation’s own analyses – which understate the case – reveal that endangered species would fare as badly or worse under the VAs than under the Trump-era biological opinions (i.e., the “No Action Alternative”). For example, fewer winter-run Chinook Salmon would be produced under the federal government’s Proposed Action that includes the VAs (see Table L.3-5). Delta Smelt will continue their slide to extinction under the VAs (see DEIS Figure F.4-9). The VAs also fail to halt the decline of the Bay’s Longfin Smelt population (Figure 1), which the Fish and Wildlife Service recently warned would go extinct in just a few decades under status quo conditions. Moreover, White Sturgeon, which this summer became a candidate for state ESA listing, would continue to decline as fast (and more likely faster) under the VAs than they would under the inadequate status quo (seeTable J.2-5).
Figure 1: Percentage difference in predicted Longfin Smelt abundance between CVP/SWP operational alternatives and the No Action Alternative (NAA) in each year modelled, as a function of predicted abundance under the NAA. Alternative 2 and its variants are the federal government’s Preferred Action. Alternative 3, the “Modified Natural Hydrograph” alternative, which prioritizes coldwater pool management and seasonal Delta outflows over some water deliveries, produces significant increases in Longfin Smelt abundance in every year. See DEIS for details. Alternatives 1 and 4 are not depicted to increase clarity.
What this all seems to boil down to is that in California water management, “adaptive management” has come to mean avoiding regulation. “Temporary Urgency Change Orders” and last-minute appeals to the Secretary of Interior or the Governor now mean never having to comply with requirements when they start to squeeze a bit. And, “Healthy Rivers and Landscapes” (the Newsom Administration’s new name for the VAs) means “a recipe for extinction.” George Orwell would be right at home.
Of course, state and federal water managers could reject the requests to suspend the Fall X2 flow action, stop relying on regulatory waivers, and reconsider the VA package they’re preparing to buy. Becoming a leader, rather than the world’s laggard, in protecting aquatic ecosystems, fish, wildlife, and water quality may be a big lift, but it’s still not too late to try.
COMMENTARY: Failure to implement environmental laws shows what’s really in store for the endangered San Francisco Bay-Delta ecosystem
By Gary Bobker, Senior Policy Director at Friends of the River, and Jon Rosenfield, Science Director at San Francisco Baykeeper
Earlier this year, two eminent fish researchers wrote “California … is a world leader in having its endemic freshwater fishes likely to be driven to extinction by the end of the century.” We know the reason. California habitually fails to enforce environmental laws designed to protect our aquatic ecosystems. Following the state’s lead, federal agencies skimp on environmental safeguards and waive the meager protections they do offer any time protecting the public’s fish, wildlife, waterways, and water quality, gets in the way of diverting more water to meet California’s seemingly unquenchable demand.
For example, in late August water diverters and their allies in Southern California and the San Joaquin Valley wrote letters to state and federal leadership requesting “suspension” of this year’s planned action to allow more outflow from the Delta to San Francisco Bay in the fall (known as “Fall X2”). The Fall X2 action is a required part of the federal (CVP) and state (SWP) water projects’ endangered species permits.
These requests telegraph how the state and federal agencies and their water agency clients plan to “adaptively” manage in the future, cherry-picking data to pursue offramps from regulatory requirements while bypassing rigorous science review. In their letters, the big water diverters and their allies asserted that recent science proves that supplemental fall outflow is ineffective in protecting Delta Smelt. That’s not true. Although the latest research indicates that additional summer outflow may be even more important than fall outflow in boosting population growth, recent studies show that enhancing fall outflow was and continues to be important in preventing extinction of Delta Smelt. Neither the Fall X2 action nor any other component of regulatory requirements that have already undergone extensive scientific peer-review (and judicial review, in this case) should be modified outside the scientific and legal and public framework for doing so and with public review and input.
The recent special pleadings for waivers to endangered species requirements are only the latest instance of water diverters pressuring fish and wildlife agencies not to enforce regulations. Their track record in getting environmental protections waived is quite good. In the 10 years between 2014 and 2023, the state and federal water projects requested and received waivers of flow requirements and export limits six times, with devastating consequences for the Bay-Delta ecosystem. So, while the big Central Valley water diverters might say they support some improvement in flows for the environment, they want to be excused from compliance with state and federal Clean Water Act requirements for flow in drier years (e.g., 2014, 2015, 2021, 2022), intermediate years (2016), and even wet years (2023). Now, in a relatively wet year that followed a very wet year, they want a waiver of Endangered Species Act requirements. The fact that the Fall X2 action is only triggered in the wettest years is apparently irrelevant. (Curiously, these same water diverters neglected to write earlier this year to request increased summer Delta Outflow from the Delta, even though they acknowledge that this kind of action is needed to protect endangered species.)
Ultimately, rather than rely on waivers the water diverters would prefer to replace real protections backed by laws like the Endangered Species and Clean Water Acts with “Voluntary Agreements” (VAs) with the state. Originally proposed as an alternative to stronger regulatory protections for fish, wildlife, and clean water as part of the Water Board’s update of the Bay-Delta Water Quality Control Plan, the water diverter community has managed to insert the VAs into proposed revisions of endangered species permits for the long-term operation of the CVP and SWP. At best, the VAs would provide little or no additional instream flow in most years, and they provide none of the improvement in temperature or other conditions that science indicates are essential to maintain and recover native fish and wildlife.
In fact, Reclamation’s own analyses – which understate the case – reveal that endangered species would fare as badly or worse under the VAs than under the Trump-era biological opinions (i.e., the “No Action Alternative”). For example, fewer winter-run Chinook Salmon would be produced under the federal government’s Proposed Action that includes the VAs (see Table L.3-5). Delta Smelt will continue their slide to extinction under the VAs (see DEIS Figure F.4-9). The VAs also fail to halt the decline of the Bay’s Longfin Smelt population (Figure 1), which the Fish and Wildlife Service recently warned would go extinct in just a few decades under status quo conditions. Moreover, White Sturgeon, which this summer became a candidate for state ESA listing, would continue to decline as fast (and more likely faster) under the VAs than they would under the inadequate status quo (see Table J.2-5).
What this all seems to boil down to is that in California water management, “adaptive management” has come to mean avoiding regulation. “Temporary Urgency Change Orders” and last-minute appeals to the Secretary of Interior or the Governor now mean never having to comply with requirements when they start to squeeze a bit. And, “Healthy Rivers and Landscapes” (the Newsom Administration’s new name for the VAs) means “a recipe for extinction.” George Orwell would be right at home.
Of course, state and federal water managers could reject the requests to suspend the Fall X2 flow action, stop relying on regulatory waivers, and reconsider the VA package they’re preparing to buy. Becoming a leader, rather than the world’s laggard, in protecting aquatic ecosystems, fish, wildlife, and water quality may be a big lift, but it’s still not too late to try.