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Environmental Law

: ESA Blawg

More litigation, more politics, and more media attention, but less water and no solutions in the Sacramento Delta

By Keith Rizzardi

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Add EPA to the list of federal agencies tangled up in the Sacramento Delta disputes. The Environmental Protection Agency is settling litigation accusing the agency of failing to comply with the Endangered Species Act , says the San Francisco Chronicle at SFgate. The Center for Biological Diversity (CBD) press release explains that they sued EPA for failing to consult on the effects of EPA-approved pesticides on 11 different species in the Bay Area. Among the species in question is -- of course -- the Delta smelt. So now, in addition to the biological opinions from the U.S. Fish and Wildlife Service and National Marine Fisheries Service on smelt and salmonids and other species, soon we will add a biological opinion related to pesticide use in the region.

With the never-ending stream of delta-smelt related ESA news coming from Northern California, it is not surprising that some frustrated farming interests are trying to invoke the ESA's Endangered Species Committee, also known as the God Squad. See The Packer. The Pacific Legal Foundation has filed a petition and begun a political campaign to force the use of the God Squad to create an exception from the ESA and relieve all the difficulties of managing the limited water resources for the benefit of protected species. See PLF press release and petition. California Governor Arnold Schwarzenegger said the “God Squad” has been ineffective in past cases, see The Business Journal, and Interior Secretary Ken Salazar said “That would be admitting failure. I am not about failure.”

The refusal to fail is admirable, but still, the enormous complexity of these challenges remain. Farmers are protesting. See The Mercury News. Some editorialists will blame the environmentalists, while environmentally-oriented thinkers blame self-interested locals and failure of the regional farming economy to adapt, further bashing regional agriculture as full of myths and lies. Ag is doing just fine, they say, especially when compared to the rest of the economy. See SF Gate. Nevertheless, water has become the Governator's biggest concern, and this story will only get bigger. Coverage of this issue has already been national news, reaching the New York Times, USA Today.

Maybe some idealistic ESA litigators believe otherwise, but a solution is unlikely to come from the judiciary. Indeed, the orders issued by U.S. District Court Judge Oliver Wanger receive intense criticism for even attempting to provide a degree of flexibility to the state and federal agencies to make decisions on a week-by-week basis. See IndyBay. Eventually -- God Squad or not -- our political leaders will be forced to wrestle with very difficult choices. The potential solution of a regional canal to reduce impacts on the Sacramento Delta remains just an idea. See Public Policy Institute of California's 2008 paper and IndyBay. But with so many different species in the region, inter-species competition over the quantity, quality and timing of water deliveries are inevitable. Human needs will continue to compete with nature, further reducing the amount of water available for fish and wildlife. Even agricultural interests are worried that Secretary Salazar will not be able to find a workable solution. See Capital Press.

So what comes next? God squad? Protests? Peripheral canal? More litigation? The California Water Czar? Pick any one, but remember, "there is always a well-known solution to every human problem -- neat, plausible, and wrong." -- H.L. Menken, "The Divine Afflatus," New York Evening Mail (Nov. 16, 1917).