Introduction

Two events that transformed the West, population growth and the dominance of agriculture, are inextricable parts of the battles fought over its most vital resource, water. Throughout the 19th century, as settlers sought to tame the rugged landscape, momentum built behind the notion of a comprehensive, federally financed waterworks plan that would provide the agrarian society envisioned by Thomas Jefferson. The Reclamation Act of 1902, which could arguably be described as a progression of the credo, Manifest Destiny, transformed the West into an economic powerhouse while putting an exclamation mark to the tide of American migration.

“The ESA is a well-meaning but certainly a flawed law,” said Rob Rivett, principal attorney with the Pacific Legal Foundation in Sacramento. “It was created with the intent of protecting species, but the way it’s written, it has not done much to accomplish that and it doesn’t take into account the needs of people.”

Critics bemoan the snail’s pace of the recovery process but defenders of the law say the situation would be much more dire without the law in place. “I often say, sure, the ESA isn’t perfect, but imagine what everything would look like if we didn’t have it at all,” said Brock Evans, executive director of the Endangered Species Coalition in Washington, D.C.

In California and the West, the ESA is a critical issue. Development and agricultural interests say the law should not be used to unjustly block new projects, while conservationists view the law as a major bulwark against the destruction of vital habitat. In the water world, municipal and agricultural interests say there is room to streamline the ESA’s application to prevent undue interruption of water delivery.

“It is clearly a new factor in the allocation of water,” said Douglas Wheeler, secretary of the California Resources Agency from 1991 to 1998. “It is a law that has very strong teeth.” Enforcement of the ESA often runs headlong into the harsh reality of the West’s aquatic resources, which are never more than a drought away from reaching critical status. The legal requirement to provide water for threatened and endangered fish has caused anger and mistrust by those whose very livelihoods depend on the constant and reliable delivery of river water by the state and federal government. On the other side, those who work for the preservation of fish, wildlife and the environment believe the time has come to restore balance to riparian systems that have been diked, dammed, drained and cleared for more than a century.

Critics say the ESA’s flaws were no more apparent than last year in the Klamath Basin, where a critical shortage of rainfall pushed government officials into a precarious corner as they faced the Hobson’s choice of providing water for the protection of endangered fish or for the farmers who rely on steady and reliable irrigation delivery. In the end, officials realized that the ESA required them to maintain high enough water flows for the fish. The farmers’ fields went dry, as did nearby wildlife refuges, initially.

The controversy that ensued was like nothing seen before, as farmers whose ties to the land spanned nearly 100 years, felt betrayed by the government that developed the water delivery infrastructure for their benefit. On the other side, biologists, environmentalists and American Indian tribes defended the decision to preserve the fish, pointing out that the over allocation of water and not the ESA was the true source of the region’s woes. The crisis was a microcosm of the ongoing struggle for water throughout the western United States.

The notion of protecting endangered species through federal law remains popular with most Americans, but in recent years a tide of discontent has arisen among ranchers, developers and farmers. The movement reached its zenith in 1995 as the Republican Party took control of Congress for the first time in 40 years. Within its ranks were members who fervently subscribed to the rights of property owners against the perceived intrusion of the federal government.

The ESA is part of “a radical environmental agenda being carried out every day in the United States by a group of committed activists I have termed the eco-federal coalition,” wrote Rep. Richard Pombo, R-Tracy, in his 1996 book, This Land is Our Land. “Their philosophy is elitist, rooted in the belief that the average American, if left to his or her own devices, would surely perform the most stupid and harmful actions possible to the environment. Thus, the average American must be restrained by regulations and, if necessary, removed from his or her own land.” ESA foes have gained a foothold in their fight by challenging the provision of “critical habitat,” a process designed to ensure that species recovery can proceed by setting aside areas where plants and wildlife are protected and can thrive. Development can proceed in designated critical habitat if habitat conservation plans (HCPs) are written to mitigate for adverse effects. This often means developers must set aside land for species or contribute money toward the purchase of additional land as a refuge.

Skeptics say the critical habitat rule is overly broad and redundant because of other sections of the ESA listing process. The issue has lingered for decades but gained prominence last year when a federal judge faulted the economic analysis used to designate habitat for an endangered bird in New Mexico. The sea of litigation brought by proponents and opponents of critical habitat spurred the Bush administration to order a comprehensive review of the economic analysis formula to restore clarity. Wildlife advocates say the maneuver jeopardizes the well being of more than 100 species in order to appease major supporters of the president.

“The sad irony right now is that the economic analysis requirement is not objectionable to environmentalists, but what the Bush administration has chosen to do is define ‘cost’ in an exceedingly narrow and self-serving way,” said Bill Snape, vice president of legal affairs with Defenders of Wildlife in Washington, D.C.

The flap over critical habitat emerged as the U.S. Fish and Wildlife Service (USFWS) was repeatedly sued for failing to designate acreage for numerous species. Court decisions have driven the designation process, often under an accelerated timeline, putting the agency in “an absolute state of gridlock,” said David Smith, general counsel for the Building Industry Association of Southern California. He said the USFWS left itself vulnerable to litigation because of its decision to enforce species protection strictly through the listing process. Now, a “25-year pattern of ignoring critical habitat is coming home to roost.”

This issue of Western Water explores the federal ESA through the developing situation with critical habitat and through an examination of the controversy that ensued last year in the Klamath Basin when endangered species considerations contributed to the shut-off of irrigation water for farmers. The endangered species issue is multi-faceted and constantly changing – such is the nature of ecological science – and this is by no means the all encompassing or last word on the subject nor does it address the California ESA.

NOTE: A complete copy of this 20-page magazine is available from the Foundation for $3. Visit our on-line store and add the July/August 2002 issue of Western Water to your shopping cart. Or, contact us by phone at 916-444-6240.

Editor’s Desk

The 25th anniversary of the Water Education Foundation was celebrated at a dinner attended by 150 people in Sacramento on the first very hot day of the season, May 30. There was a lot of reminiscing about the early days of the Foundation when the budget did not cover end-of the-year expenses. When I started at the Foundation in the third year of its existence, we had to hold a raffle to print the California Water Map. At that raffle and several others held over subsequent years, I donated the grand prize: a gourmet dinner cooked in the winner’s home by myself and served by my husband, John. So on the 25th anniversary, we repeated history and raffled-off a dinner once again. I’m pleased to report long-time supporter LeVal Lund won the dinner.

There were other memories shared by participants at the dinner. Some called themselves former adversaries who didn’t believe that the new Foundation could live up to its goal of becoming an impartial organization. They are now supporters and were pleased to join us in this celebration. About 20 volunteers were singled out for their extraordinary service to the Foundation. Many sponsors helped us support the event and proceeds were used to support our Water Leaders program.

Former Foundation presidents Bill Giannelli and Bob Hagan attended. Bill announced that he is making a donation to begin an endowment for the Water Leaders program so that young professionals can learn about current water issues. Bob spoke via an interview on a video that commemorated our activities during the 25 years. He said at the Foundation’s beginning, “We had no money, no staff but we had an idea.” At the end of 25 years, he noted that he’s proud the Foundation is well recognized as a source of unbiased information on Western water issues.

– Rita Schmidt Sudman

In the News

New Water Bond Qualifies For November Ballot

Californians in November will once again vote on a water bond measure that provides billions of dollars for key projects, most notably the continued funding for the state’s portion of the CALFED Bay-Delta restoration program.

The $3.4 billion Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002 devotes $825 million to an array of CALFED programs, such as water storage planning and studies, Delta levee and ecosystem restoration, and watershed protection. Proponents launched the initiative when it became clear that past bond dollars and state funding were quickly drying up.

“The biggest driver was funding CALFED,” said Leslie Friedman Johnson, legislative advocate for The Nature Conservancy, one of the initiative’s sponsors. “We’re now in the era of very limited General Fund money [and] it looked like CALFED would run out of money.”

The Metropolitan Water District of Southern California and the East Bay Municipal Utility District have endorsed the initiative. Sen. Mike Machado, D-Linden, is the honorary chairman of the ballot campaign.

The proposal differs from earlier water bonds in that it was placed on the ballot through the signature-gathering process and not through legislative action. As such, it has been criticized as not being responsive to the needs of municipal and agricultural water suppliers.

“Had we been involved, there would have been more emphasis on supply, water quality and more money for security,” said Jennifer Persike, director of communications for the Association of California Water Agencies (ACWA). “We feel it is not as comprehensive as it could have been.” She added the bond “does fund a lot of important programs and does add a lot to the overall equation.” The ACWA board has yet to take a formal position on the bond.

About one-third of the bond would be used for the acquisition of coastal lands and water quality improvements. Fifty million dollars are set aside for such water security measures as monitoring and early warning systems, protective structures, emergency interconnections and communication systems. Also included in the bond are $100 million for desalination projects and removal technologies for MTBE, chromium and arsenic. The latter is of concern to many rural water agencies that anticipate having trouble complying with the EPA’s new drinking water standard. “That’s an unprecedented amount for drinking water,” said Johnson, who added that programs to remove troublesome contaminants are “generally under funded.”

The initiative is the third statewide water bond since 1996. Voters that year passed Proposition 204, which provided $995 million to a broad range of water-related projects. In 2000, voters approved Proposition 13, which provided $1.97 billion for safe drinking water and clean water programs. Funds available from Prop. 204 are largely gone; some funding is still available from Prop. 13.

The bond will probably be a tough sell to the state’s agricultural water users because its emphasis is not on new storage projects.

“Our primary assessment is that this is another bond with no money for new storage,” said Mike Wade, executive director of the California Farm Water Coalition. “Our industry as a whole is looking for some dollars going into new storage projects, whether surface or groundwater.”

The bond’s expenditures for CALFED water conservation, recycling and water use efficiency projects reduce the need for “other, more destructive types of water projects,” according to the Planning and Conservation League. But groups such as the Farm Water Coalition say it’s time to move forward on actually building storage projects because the issue has been “studied to death,” Wade said.