Special Feature Guest Blog: California Drought Legislation Threatens Endangered Species to Protect “Big Ag”

If passed, the proposed California drought legislation, entitled the Sacramento-San Joaquin Valley Emergency Water Delivery Act (“Bill”), will purportedly help Californians cope with the hardships of California’s severe recent drought. However, this Republican-sponsored bill could have dangerous impacts on endangered species. At the expense of certain protections offered endangered species under the Endangered Species Act, this bill proposes aid to California farmers and the agricultural industry. While the drought has caused human hardship and Californians need a solution, reducing protections for endangered species’ habitat is not the best option.

A Clean Water Crisis in California

Severe drought has gripped the western United States. California, particularly, is experiencing all time lows in precipitation, reducing some major reservoirs by 30 percent. Agriculture uses approximately 70 percent of the world’s accessible freshwater. According to the Public Policy Institute of California (“PPIC”), California’s “Big Ag” industry is a major water consumer, consuming roughly 80 percent of statewide water use for approximately nine million acres of irrigated farmland. California’s Central Valley is home to most of its agriculture and the increase in perennial crops has made the region even more vulnerable to drought. According to PPIC, “Big Ag” industry’s failure to manage groundwater sustainably limits groundwater availability as a drought reserve. Due in part to global warming and shifts in weather patterns, droughts will only become more frequent and last longer in some places, like the western United States.

Freshwater Scarcity Impacts Endangered Species

The current freshwater crisis is a burden to species as well. While many animals are facing this water shortage, to species that are already endangered, the additional problem of freshwater scarcity only exacerbates their threat level. Already strained ecosystems are becoming more damaged, resulting in the destruction of habitat for many endangered species, including mammals, birds, reptiles, and fishes.

California provides a prime example of how freshwater scarcity is negatively impacting species. Because of the severity of California’s recent droughts, fisheries have dried up and many animals have had to migrate to find freshwater. California currently lists 37 species of fish on its endangered species list and, experts believe “there is every sign that that number will increase.” If the current drought continues at the present rate, it is likely that 80 percent of listed fish species will face extinction within the next few decades.

If passed, the Sacramento-San Joaquin Valley Emergency Water Delivery Act (“Bill”) would further exacerbate threats to California’s endangered species, override protections under the Endangered Species Act (“ESA” or “Act”), and negate a 2009 settlement agreement that served to protect species and freshwater resources in the San Joaquin Valley.

The Endangered Species Act

The ESA, 16 U.S.C. §§ 1531-1544 (2012), is a reactive regime that protects one species at a time from extinction. It was designed to be broad and far-reaching, including the prohibition of “taking” an endangered species under section 1538. The term “take,” as defined under the Act, means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. To ensure no governmental action results in a “taking” of a listed species or its critical habitat, section 1536 mandates interagency cooperation and consultations. This section directs federal agencies to work with the Secretary of Interior to make sure “any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species.” To further ensure that agency actions will not jeopardize listed species, the ESA also directs agencies to conduct biological assessments to identify any endangered or threatened species, which would likely be affected by such federal action. This assessment must be completed before any contract for construction is entered into and before construction can begin.

California’s Endangered Species

Overall, California’s Department of Fish and Wildlife lists 149 species as endangered and threatened; 31 listed by California only, 68 listed federally only, and 50 listed under both California’s program and the federal program.

The giant kangaroo rat is listed as endangered on both the California state list and the federal list. The giant kangaroo rat can only be found in California’s Western San Joaquin Valley. Development and agriculture have dramatically decreased the giant kangaroo rat’s original habitat by about 98 percent. While kangaroo rats can survive without water very few females will mate after prolonged drought. Therefore, during severe droughts, the already endangered giant kangaroo rat will reproduce at significantly lower rates. This, in turn, impacts the San Joaquin kit fox, which preys on the giant kangaroo rat. The ripple effect creates a cycle and further endangers species along the food chain.

Another species affected by drought is the tiger salamander, which is already in serious danger as it faces drying wetland habitats. All four species of tiger salamander are listed as threatened on California’s list. Two of the four species are federally listed as threatened and the other two are listed as endangered. The tiger salamander relies on freshwater wetlands for a majority of its lifecycle: for mating, breeding, and for food sources. Tiger salamanders live on land in underground burrows, but journey to ponds and wetlands to mate and breed. As California’s freshwater ponds and wetlands are drying up, or being destroyed by human development, some adult tiger salamanders may not make it to a freshwater pond to mate. The salamander’s natural breeding grounds are becoming fewer meaning the species rate of reproduction is also decreasing. Additionally, the tiger salamander relies on the freshwater pond ecosystem to feeds on algae, mosquito larvae, tadpoles, and insects as it matures.

These are just a few of California’s species that are severely impacted by the drought. However, if the Bill succeeds, it will remove crucial protections and could further harm these species.

The Sacramento-San Joaquin Valley Emergency Water Delivery Act

Touted as “emergency drought legislation,” this Bill was introduced as a means to solve some of the problems and hardships caused by the California drought. The Bill passed the House last year and is pending before the Senate. However, this Bill, H.R. 3964, 113th Congress, 2013-2014, could override protections granted endangered species under the ESA and further defined by the decision in NRDC v. Rodger, all in favor of promoting the agriculture industry.

The Bill proposes to amend the Central Valley Project Improvement Act (“CVPIA”) (Pub.L.No. 102-575, 106 Stat. 4600, 4706-31 (1992)), which seeks to achieve “a reasonable balance among competing demands for use of Central Valley Project water, including the requirements of fish and wildlife, agricultural, municipal and industrial and power contractors.” The CVPIA also directs the Secretary of the Interior to implement fish and wildlife habitat restoration projects, as well as to meet obligations imposed by the ESA. The Bill would redefine the CVPIA’s purpose to ensure that water dedicated to fish and wildlife purposes is replaced and expediently provided to water contractors at the lowest cost reasonably achievable, meaning ESA protections granted to fish and wildlife under the CVPIA could be overridden.

The Bill also directs the Secretary of the Interior to stop all implementation of the San Joaquin River Restoration Settlement Act, which would effectively override the ESA protections granted to fish and wildlife in the Valley as the result of Natural Resources Defense Council, et al. v. Rodgers, et al. (381 F. Supp. 2d 1212 (E.D. Cal. 2005)). In NRDC v. Rodgers, plaintiffs relied on the ESA to support their assertion that agencies, including the U.S. Bureau of Reclamation (“BOR”), the U.S. Fish and Wildlife Service (“FWS”), and the U.S. National Marine Fisheries Service (:NMFS”), failed to examine critical issues in biological opinions before executing water contracts for the delivery of California Water Project water, which was to be used partly for irrigation in agriculture. The District Court for the Eastern District of California ruled in favor of plaintiffs and a settlement was reached.

This case began because of big agriculture. The Friant Dam was built on the San Joaquin River to irrigate agriculture throughout the San Joaquin Valley, but as a result, the River dried-up in many places, causing many fish species to extirpate, including endangered species like the Chinook Salmon. The water diverted from the Dam is contracted under long-term water contracts and were up for renewal in 2000. Pursuant to the protections offered species under the ESA, before these contracts could be renewed, biological opinions should have been conducted to determine if such renewals would have any negative impact on listed species. The agencies determined that the contract renewals would not likely jeopardize endangered species and would have little adverse impact, even though seven critical habitats had been designated for species in the Valley, including the California condor, the Delta smelt, and the kangaroo rat. Based on the biological opinions from NMFS and FWS, BOR issued the water delivery contracts. The case was brought by plaintiff’s alleging the biological opinions did not meet the standards set forth under the ESA and, because of that, several threatened and endangered species were adversely impacted.

The Court held that the agencies actions violated the ESA. The result was implementation of the San Joaquin River Restoration Settlement Act in 2009. The Settlement Act created the San Joaquin River Restoration Program, which is a long-term effort to restore flows to the San Joaquin River from the Friant Dam, as well as an effort to restore a self-sustaining Chinook salmon population in the River. The Settlement was based on the two goals of restoration and water management; restoring and maintaining the River and its population of threatened and endangered species, as well as continued efforts to make sure there are no future adverse impacts from Friant Dam contracts.

This Bill could undo all that has been achieved since NRDC v. Rodgers to tae the River back to where it was before NRDC v. Rodger. This Bill, which would halt all action on the Settlement Act and Restoration Project, ignores the Court’s findings in NRDC v. Rodgers, like the fact that endangered species could be adversely impacted by water delivery contracts. The Bill would eliminate references to the Settlement Act and Restoration Plan, directing the Secretary of the Interior to modify Friant Dam operations to release restoration flows. The Bill directs the Secretary to identify impacts and implement mitigation measures, but such impacts and mitigation measures only refer to adjacent and downstream water users, landowners, and agencies, not to impacted species. Additionally, the Bill preempts and supersedes any state law, regulation, or requirement that imposes more restrictive requirements, meaning that California’s state Endangered Species Act would be overridden. The Bill also repeals provisions requiring the reintroduction of California Central Valley Spring Run Chinook salmon, a listed species, into the San Joaquin River. The Bill essentially authorizes a “take” of threatened and endangered species and their critical habitat without conducting a proper biological assessment and a finding of no jeopardy.

The Damaging Dam

It was determined years ago that contracting to deliver water from the Friant Dam adversely impacted species, especially threatened and endangered fishes. But the drought in California, and the negative impact it has had on California crops, seems to have taken precedence over such species. The proposed Bill would take the San Joaquin River and Valley back to the issues it faced before NRDC v. Rodgers and would not resolve any long-term issues the drought poses. Decreasing environmental protections of any kind will not cause the drought to lessen; rather, California should focus on water conservation, consumption, increased efficiency and combating climate change, the real causes of the drought. It is important to focus on the bigger picture here. Every living thing needs water and endangered species should not pay the price of supporting “Big Ag.”

*L.L.M. Environmental Law, Vermont Law School;
 J.D. Penn State Dickinson School of Law

The title image features the Friant Dam in California and is licensed under the Creative Commons Attribution 2.0 Generic license. The owner of this image does not endorse this blog.