By Doug Obegi, Natural Resources Defense Council
In addition to Trumpian arguments about “new” science (See part one of this blog), agribusinesses and water agencies that would benefit from increased water diversions from California’s Bay-Delta also argue that existing protections for salmon and other endangered species are not needed. But due to litigation and relentless political pressure by these same entities over the past decade, the state and federal agencies have repeatedly and frequently failed to require implementation of the requirements in the biological opinions, including both operational requirements and habitat restoration requirements:
Waivers of Biological Opinion Requirements Regarding CVP/SWP Operations
|2010||Old and Middle River (OMR) reverse flow protections not fully implemented, San Joaquin River inflow:export ratio not fully implemented|
|2011||Fall X2 protections not fully implemented|
|2012||San Joaquin River inflow:export ratio not fully implemented|
|2014||Winter/spring Delta outflow requirements waived, OMR reverse flow requirements not fully implemented, Shasta temperature requirements violated|
|2015||Winter/spring Delta outflow requirements waived, OMR reverse flow requirements not fully implemented, Shasta temperature requirements violated|
|2016||First flush OMR action not fully implemented, San Joaquin River inflow:export ratio not fully implemented|
|2017||Fall X2 protections not fully implemented|
|2018||San Joaquin River inflow:export ratio not fully implemented|
Other Requirements of these Biological Opinions that have been Violated
|Restoration of approximately 20,000 acres of floodplain habitat in the Yolo Bypass by 2019||Construction may begin in 2020 or 2021|
|Improve Lisbon weir to enable fish passage by December 2015||Incomplete|
|Restoration of 8,000 acres of tidal marsh habitat in the Delta by 2019||Incomplete – far less than one third of the required acreage has been restored or is in construction|
|Complete Battle Creek restoration by 2019||Phase 2 significantly delayed|
|Shasta Reservoir temperature compliance||Violated performance measures and exceeded incidental take limit. Bureau of Reclamation rejected NMFS’ proposed revision of temperature requirements in 2017.|
|Salmon passage and reintroduction program at Shasta Dam and other reservoirs||Reintroduction program completely stopped by the Bureau of Reclamation in 2018|
Indeed, the contractors and the Trump Administration have also fought efforts to update the biological opinions to account for new scientific information. In 2017 the National Marine Fisheries Service proposed amendments to the biological opinion to strengthen protections for salmon below Shasta Dam in light of new scientific information, but the water contractors strongly opposed the amendments and the Trump Administration refused to implement it.
These same water agencies that are working with the Trump Administration to weaken protections in the Delta also claim that they can safely divert more water from the Bay-Delta watershed using “real time management.” The existing biological opinions require consideration of fish presence and distribution, turbidity and water quality, outflow, and other real time criteria in setting Old and Middle River flow requirements between -1,250 and -5,000 cfs. The biological opinions also require that FWS and NMFS make the final decision on OMR limits within that range, based on the long history of the Bureau of Reclamation and DWR refusing to follow the advice of the biologists to reduce pumping when the fishery agencies could only provide recommendations. Now the Trump Administration and their water district allies want to effectively eliminate the -5,000 cfs OMR “speed limit” on pumping when there is “any precipitation” in the Central Valley, and to eliminate the authority of CDFW, FWS and NMFS to require protective operations when warranted (instead, the Bureau and DWR think the agencies should just “trust” them). This would be a disaster for fish and wildlife:
- Over the past several years, in addition to waiving requirements in the biological opinions, the U.S. Fish and Wildlife Service has repeatedly and routinely rejected the recommendations of its Smelt Working Group, in order to allow for more water to be pumped from the Delta than the scientists recommended based on real time data. When more Delta Smelt were killed at the pumps, the Service simply increased the number of delta smelt that could legally be killed.
- Agency scientists and independent scientific peer reviews have frequently concluded that the existing monitoring programs are inadequate for this kind of real time operations. For instance, in 2017 the Delta Independent Science Board reviewed the Enhanced Delta Smelt Monitoring program and cautioned that, “resulting abundance and distribution estimates are highly uncertain,” and that “it is difficult to see how the EDSM currently can be used to inform water operations in near real time.” Similarly, in its biological opinion for the WaterFix project, NMFS concluded that assumptions that real time operations would minimize impacts to migrating salmon underestimate the reductions in survival caused by operations because of inaccuracy in sampling and fish movement patterns.
- In 2017 NMFS reiterated that increased OMR more negative than -5,000 cfs results in increased entrainment and reduced survival through the Delta.
- In many cases over the past decade, when the agencies have been pressured to allow for increased pumping based on real time management, the projects end up pumping less water over time, because the increased pumping kills more fish and triggers more restrictive OMR requirements for days or weeks. Similarly, if increased pumping through real time management results in decreasing fish populations, more restrictive protections have to be imposed to prevent extinction, reducing water supply over time;
- Real time management allowing increased pumping would destroy critical habitat that these species depend on even when fish are not present, harming other fish (like fall run Chinook salmon, which are the backbone of the state’s salmon fishery) and making these habitats less suitable for endangered species in the long run;
- Real time management often reduces life history diversity because it fails to protect those salmon and other species that migrate earlier or later, since there are fewer fish migrating at that time and they are less likely to be caught in monitoring networks. This weakens the population and increases the risk of extinction;
- Some species are simply too rare now for this approach to work.
Finally, these water agencies also claim that if we just do X – restore more habitat, kill more predatory fish, reduce wastewater discharges, stop invasive species, whatever the red herring de jour – everything will get better without a need for increased flows. While some of these proposals, like restoring more habitat of the right type in the right places, may be good for imperiled species, they are not a substitute for the keystone element of a fishes’ habitat: water. It’s that kind of magical thinking that has led California to this crisis in the Delta.
These allies of the Trump Administration – the Westlands Water District, Metropolitan Water District of Southern California, and other agribusinesses and water districts — have spent the past decade litigating to overturn the biological opinions and enjoin their implementation, pressuring the agencies not to fully implement the biological opinions and allow more pumping than agency scientists recommended, and lobbying Congress to preempt biological opinions under the Endangered Species Act and to instead require operations based on standards from the 1990s.
If you wouldn’t trust oil companies or tobacco companies to tell you what’s safe for the planet or your health, why would you trust these water agencies – which make their living selling imported water and have spent the past decade undermining environmental protections in the Delta – to tell you what’s good for fish and wildlife in the Bay-Delta watershed?