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."