Feinstein's Water Bomb

by Matt Jenkins

Sen. Dianne Feinstein, D-Calif., is preparing to introduce a legislative rider that would dramatically reduce Endangered Species Act protection for salmon and other fish in California. The amendment would lift restrictions on the amount of water that farmers can pump from the Sacramento-San Joaquin river delta for the next two years. But it could also scuttle a delicately negotiated effort to balance protections for endangered fish with the water needs of farms and residents of Southern California.

Feinstein’s effort comes as the state seems bound for the third year of an emergency fishing ban to protect dwindling salmon runs, and as populations of the Delta smelt and other fish continue to crash. And the move is a remarkable turnaround:  Just four months ago, Feinstein denounced Sen. Jim DeMint, R-South Carolina, for trying to introduce a similar amendment at the behest of California water districts.

Feinstein's office declined repeated requests for details and comment yesterday, but insiders familiar with the matter say that the Senator’s reversal is largely due to lobbying by the Westlands Water District. Last year, after three years of drought, the federal government cut water deliveries to many irrigation districts in the San Joaquin Valley. Westlands, which is the largest district of its kind in the nation, was hit the hardest, and saw its supply of water from the Delta dwindle to just 10 percent of the amount it holds contracts for.

Westlands is "a coyote with its leg in a steel-jawed trap," says Jason Peltier, the district’s chief deputy manager. “Short-term, we’re going to pursue every right and legal avenue we have to protect ourselves.”

But pushing aside the federal pumping restrictions intended to protect threatened smelt and endangered salmon would solve only part of the district’s problem. Fish-related restrictions account for just 15 to 20 percent of the cutbacks, according to an independent analysis by the Public Policy Institute of California. The vast majority of the water shortage is due to the drought. (For an in-depth exploration, see Breakdown).
   
Westlands' battle against the pumping restrictions has nonetheless reached a heart attack-inducing pace. Last week, the district led a confederation of farm-water agencies in asking federal district judge Oliver Wanger to order the federal government to run its Delta pumps at maximum capacity. That helped capture the surge of water delivered by a massive winter storm, but the reprieve lasted just six days before the government had to throttle down its pumps. On Wednesday, Westlands and other water users asked Wanger to order that those pumps be started up again, but the judge denied that motion.
   
Then, on Thursday, Sen. Feinstein announced that she is considering an amendment that will essentially do what Judge Wanger would not. Feinstein’s office has not released a final draft of the rider, which the Senator intends to attach to the jobs bill now before Congress. Sources who helped craft the amendment say that it won’t be a flat-out waiver of Endangered Species Act protections — but, for fish, the rider may be even worse than an outright waiver.
   
Under the current endangered-fish restrictions, the federal government  can dial its pumps up or down within a specified range to respond to changing conditions. Yet the government, Peltier says, has tended to be overly conservative. "We have been hoping for the regulators to exercise some discretion," he says. "But they just default to the most restrictive levels possible."
   
Feinstein's rider would force federal officials to keep the pumps floored at the highest levels currently permitted. Westlands spokeswoman Sarah Woolf says that would allow water agencies to pump an extra million acre-feet of water out of the Delta during the winter and spring. If that's true, it would mean that, based on the Public Policy Institute of California’s analysis, Feinstein's rider would allow irrigation districts to pump twice as much water from the Delta as they could were the current fish protections totally eliminated.

As a sop to fishermen put out of work by the salmon-fishing ban, the rider contains a provision for disaster assistance funds for fishing communities. But Feinstein’s announcement is threatening a much quieter, and potentially more far-sighted, round of deal making that has been underway in Sacramento. In that negotiation, which started three and a half years ago, water agencies like Westlands and the Metropolitan Water District, which supplies 19 million people in Los Angeles and San Diego, invited state and federal agencies and environmental groups to meet. The goal of that effort is an agreement on the Bay Delta Conservation Plan, a long-term strategy that would allow water pumping to continue for the next half-century in a way that complies with the state and federal Endangered Species Acts. That effort is now intended to create the operational blueprint for the sweeping water package passed by the state legislature last fall.
   
Gov. Arnold Schwarzenegger's administration has been firm in its support of the Bay Delta Conservation Plan and its commitment to seek solutions that don’t require suspending endangered species protections. Last September, after Sen. DeMint introduced his amendment, Lester Snow — who was then director of the California Department of Water Resources and is now Schwarzenegger’s resources secretary — wrote to Feinstein to "express our strong opposition to any effort to set aside, suspend, or otherwise weaken the Endangered Species Act."
     
"The state is committed to working with stakeholders and our federal partners in the Bay Delta Conservation Plan process to achieve the co-equal goals of a healthy ecosystem and a reliable water supply," Snow wrote. "Weakening or suspending (the Endangered Species Act) does not contribute to this effort."
     
Now, however, faced with the specter of Feinstein introducing an amendment that could weaken protections for fish, most of the environmental groups that are participating in the Bay-Delta Conservation Plan — including the Environmental Defense Fund, Defenders of Wildlife and the Bay Institute — are contemplating a walkout.
   
"The rider would effectively pull the rug out from under the Bay Delta Conservation Plan," says Ann Hayden, a senior water resources analyst with the Environmental Defense Fund. Ramped-up pumping would, she says, worsen already bad conditions for salmon and smelt. "It would create an even bigger hole that we have to dig our way out of."
   
If the environmental groups pull out of the Bay Delta Conservation Plan, that could increase the water agencies' exposure to legal challenges later this year, when they seek approval for the final plan from state and federal regulators. "To the extent that fewer and fewer environmental interests are involved in the process, it becomes more and more like a water-user wish list," says Gary Bobker, the program director for the Bay Institute. "You’re inviting failure."
   
Last fall, in response to a request from a large farming corporation called Paramount Farms, Sen. Feinstein asked the National Academy of Sciences to carry out a pair of reviews of the science behind the current pumping restrictions. The environmental groups participating in the Bay Delta negotiations have stood behind the National Academy, which is scheduled to release its first report in March.
   
Now, however, with Sen. Feinstein introducing legislation that will revamp pumping requirements before the first National Academies report is even completed, and with water agencies inside the Bay Delta Conservation Plan mounting numerous challenges to the Endangered Species Act on the outside, the environmental groups that gambled on the plan are beginning to smell a set-up.
   
"We’re being pushed into a corner," says Hayden. "We are losing this. We're getting played."

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