NRDC Archives - California Agriculture News Today

California Water Cutbacks Are Not Saving Delta Smelt

U.S. Supreme Court to rule on ESA-mandated water curtailments to protect Delta Smelt regardless of the cost to humans and economy

A summary of the California Department of Fish and Wildlife (CDFW) Fall Midwater Trawl Survey (FMWT) reports the lowest index for Delta Smelt in the 48-year history of this survey. The FMWT is mandated by the Delta Smelt Biological Opinion for the coordinated operation of the Central Valley Project and the State Water Project.

Jason Peltier, Chief Deputy General Manager of the Westlands Water District, sees these results as the “latest evidence of a failed regulatory regime.”

The memorandum, sent from Steven Slater, CDFW Environmental Scientist, Region 3, to Scott Wilson, CDFW Regional Manager, Region 3, describes the Survey which annually measures the fall abundance of pelagic fish—fish which live neither near the bottom of oceans or lakes, nor near the surface, such as ocean coral reefs—since 1967. FMWT equipment and methods have remained consistent since the survey’s inception, which allows the indices to be compared across time.

According to the Memorandum, the FMWT annual abundance index is the sum of monthly indices from surveys conducted over the four months from September through December each year. During each monthly survey, one 12-minute oblique midwater trawl tow is conducted at each of 100 index stations used for index calculation and at an additional 22 non-index stations that provide enhanced distribution information.

The 2014 Delta Smelt index is 9, making it the lowest index in FMWT history. Delta Smelt abundance was highest in 1970 and has been consistently low since 2003, except in 2011.

Other fish also scored poorly. The 2014 age-0 Striped Bass index is 59, making it the third lowest index in FMWT history. Age-0 Striped Bass abundance was highest at the survey’s inception in 1967. The 2014 Longfin Smelt index is 16, making it the second lowest index in FMWT history. Longfin Smelt abundance was highest in 1967. The 2014 Threadfin Shad index is 282, which is the sixth lowest in FMWT history and the seventh in a series of very low abundance indices. Threadfin Shad abundance was highest in 1997. The 2014 American Shad index is 278, which is the second lowest in FMWT history and only slightly higher than the 2008 index of 271. American Shad abundance was highest in 2003. (Figures 2 through 6, below, illustrate these indices.)

In, “Delta smelt legal battle heads to Supreme Court,” published Wednesday in the LA Times, reporter David Savage, stated, “The delta smelt may be a small fish with a short life, but it has spawned a decades-long legal battle over water in California. At issue has been a series of orders under the Endangered Species Act that at times reduce water deliveries from the Sacramento-San Joaquin River Delta to San Joaquin Valley growers and urban Southern California.”

Citing the severe state drought, the article reports that the Metropolitan Water District of Southern California attorneys are asking the U.S. Supreme Court to reconsider a strict federal rule from the 1970s that calls for curtailing the water diversions to protect the threatened delta smelt and other imperiled species regardless of the cost to humans and the economy.”

Lawyers for the Natural Resources Defense Council (NRDC) and U.S. Solicitor Gen. Donald Verrilli Jr. urged the court to turn down the appeals, the article states, saying the 9th Circuit was correct in saying Fish and Wildlife officials must take reasonable steps to protect an endangered species, regardless of the economic effect.

Kate Poole, an NRDC attorney, said the water agencies have “a long history of exaggerating the impacts “of protecting endangered fish in the delta, including Chinook salmon,” per the LA Times. “The underlying problem in California is that our demand for water consistently exceeds our supply, even in non-drought years,” she said. “Wiping out our native fisheries will not solve this problem.”

In response to the NRDC comments, the California Farm Water Coalition electronically published the following Today:

Kate Poole’s remarks, that farmers have exaggerated the impacts of ESA-based water supply cuts, would be insulting to the thousands of farmers, farmworkers, and local business owners who face not just bankruptcy, but the loss of their way of life. Hundreds of thousands of acres of farmland have been permanently fallowed. Farmers have switched to higher value crops to justify higher costs for reduced water supplies. Farmworkers have moved away, seeking employment because of job losses in communities like Firebaugh, Mendota and Huron.”

Communities were developed on the faith that was placed in the federal government to keep its promise to deliver reliable supplies of water through the Delta. While the impacts of reduced water supplies seem insignificant to the lobbyists and lawyers from the kinds of powerful environmental organizations represented by Poole, for those whose very livelihoods are dependent on this water it is a constant struggle.

Debate Heats up on Proposed EPA Water-Quality Rule

Source: Kate Campbell; Ag Alert

Discussion has intensified about proposed changes to the Federal Clean Water Act. As farmers and ranchers express increasing concern about enhanced permitting requirements, land-use restrictions and legal liability that the proposal could cause, the U.S. Environmental Protection Agency launched its own campaign to defend the proposal.

Agricultural leaders want the EPA to scrap the proposed rule changes, terming them a poorly orchestrated attempt to expand agency jurisdiction. The proposed rule was published in April, and remains open to public comment until October.

County Farm Bureaus in California are joining the national push to have the proposed rule changes withdrawn, reaching out to members of the state’s congressional delegation and urging the proposal be stopped.

Meanwhile, the EPA called its proposals merely an effort to clarify regulatory jurisdiction, which was called for in two U.S. Supreme Court decisions that ruled against the agency’s attempt to expand its jurisdiction over “waters of the United States.” EPA said the proposed rule would have minimal economic impact and would not affect many acres—only about 1,300 acres nationwide.

The American Farm Bureau Federation called that assertion “laughable,” considering the amount of land nationwide that has the capacity to retain seasonal moisture, a condition covered by the proposed rule. Under the proposal, legal experts say, wet spots could be deemed “waters of the U.S.”

AFBF said the EPA effort to expand its jurisdictional authority over most types of waters and lands is regulatory overreach that has the potential to impose costly and time-consuming federal permit requirements, as well as place limits on routine farming practices, such as building a fence across a ditch or pulling weeds. Essentially, EPA has proposed regulations that fundamentally redefine “waters of the U.S.” and eliminate the term “navigable” from the law, AFBF said.

“We’re urging Congress to take a look at the proposed rules and we’re urging the agency to withdraw both of them,” California Farm Bureau Federation Federal Policy Manager Rayne Pegg said, referring to both the main EPA proposal redefining “waters of the U.S.” and an “interpretive rule” that focuses on agricultural activities.

Pegg stressed that farmers recognize the need to protect water quality, and already abide by a number of water-quality regulations.

“Adding another layer of regulation does not mean you will get better results,” she said. “Instead, the rule will create more paperwork. It’s a poorly conceived rule. EPA should meet with farmers and listen to its own Scientific Advisory Board to craft something that is practical.”

There are a number of things going on in Congress right now related to these rules, she said, and CFBF has been responding to questions from members of congressional committees—including the House Appropriations Committee, which is considering legislation to remove funding for implementation of the proposed waters of the U.S. rule.

In response to the uproar over the proposal, EPA Administrator Gina McCarthy took to the road last week—touring a Missouri farm and meeting with a number of Kansas farm groups. She acknowledged during a lunch discussion with agricultural leaders the waters of the U.S. proposal has “fallen flat on its face.”

But during a speech in Kansas City, she charged that the EPA proposal has been beset by “D.C. myths.”

“Misinformation is becoming the story, while the legitimate, serious issues that we need to talk about are taking the back seat,” McCarthy said.

At the same time McCarthy visited the Midwest, the Natural Resources Defense Council—an environmental organization—took out advertisements supporting the EPA proposal.

Confusion about what the proposed rule may actually cover and conflicting interpretations of the rule changes may leave political leaders with the impression the proposal is benign and that farmers don’t need to worry, said CFBF associate counsel Kari Fisher.

“EPA would like political leaders and the public to believe that all farmers need to do is go ahead with normal farming practices and not worry about the proposed changes,” she said. “Unfortunately, that’s incorrect.”

Fisher said the interpretive rule on agriculture would require certain farming practices—such as putting in a new fence or maintaining a ditch—to comply with U.S. Department of Agriculture standards administered by the Natural Resources Conservation Service. She noted that the interpretive rule would apply only to Section 404 of the Clean Water Act, which covers dredging and infilling land that could affect wetlands.

But the proposed rule to expand the definition of “navigable waters” applies to the entire Clean Water Act, she said, and would expand EPA jurisdiction over water.

“If the proposed rule redefining waters of the U.S. is adopted, farmers with land that features a depression or low spot that’s adjacent to a tributary flowing to navigable water could be brought under the rule’s jurisdiction,” Fisher said.

Although the interpretive rule might provide a limited layer of protection for farming and ranching activities from the need to obtain Section 404 permits, she said, “it will not provide protection from other necessary Clean Water Act permits, such as those for the discharge of pollutants.”

Farm Bureau leaders continue to urge members to help prevent the proposed rule from becoming final by commenting about the impact the proposal would have on their farms and ranches.

Information from EPA on the proposed changes to the CWA can be found online at www2.epa.gov/uswaters. Background information on the issue from AFBF is online at http://ditchtherule.fb.org/.

For information on arranging local farm tours, grower roundtables and informational meetings with members and staff of California’s congressional delegation, contact county Farm Bureau offices or the CFBF Federal Policy Division at 916-561-5610.