Some hardcore, to tide you through the weekend.
Sometimes when I tell you water things, it is based on gossip I’ve heard around here. This time though, I want to stress that everything I’m writing is from what I’ve read in the papers. I don’t know the people working on this; they’re high up. I usually avoid anything to do with the Delta because it is so damn hard and you can give twenty pointless years to it. This is absolutely my private opinion with no insider knowledge and it certainly doesn’t reflect anything official from any state agency that I may or may not work for. … One day, I’ll be fired for what I write here (not this-post here, this-blog here).
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Superior Court Judge Roesch ruled last month that the California Department of Wtr Rsrcs was in violation of the California Endangered Species Act and the California Fsh and Gm Code for operating the Harvey Banks Pumping Plant without an Incidental Take permit from the Department of Fsh and Gm. Judge Roesch said that Wtr Rsrcs had sixty days to get an Incidental Take permit, or he would shut down the pumping plant until they got one. I’ll remind you that the Harvey Banks pumping plant is the primary source of water for about half the agriculture in the San Joaquin Valley and most of Los Angeles.
Couple thoughts. First, the power granted under the Endangered Species Act is awesome. Not awesome like way cool and gnarly, awesome like unbelievably vast and absolute. To save a species, a judge can stop any project; economic costs are explicitly not a factor in the judge’s decision. At any economic cost a judge can take nearly any action. Second, you don’t realize that because it never happens. Judges never do that, except Judge Roesch, who has monster-sized stones. Judge Roesch looked the state in the eye and said “Six or seven billion dollars worth of agriculture this year? Drinking water for the City of Los Angeles? The way you state agencies have done business for decades? Fuck you, state of California. I want a piece of paper that shows me you are protecting a small ugly fish. Sixty days, State of California.” (Um, that is my paraphrase. You will not find that in the decision.) I have HUGE respect for Judge Roesch.
That said, while his decision is as good as any of his choices, I don’t think it was actually good. Whenever I know a little about these complex environmental crises, I come to believe there are no straightforward remedies. In this case, I think the physical problem is very difficult, and the agencies have worked out a series of work-arounds that are a decent job by thoughtful, informed professionals, swayed by political influence, and far from compliance with the law. I can’t see a good way for a judge to bring them back in compliance with the CESA. For all the judge’s authority to stop the pumps until Wtr Rsrcs gets an Incidental Take permit, I can’t see it really happening. It is simply too big. If you are balancing water for the lower half of the state against a bureaucratic requirement, the requirement must lose. If you are balancing water for the lower half of the state against the rule of law, perhaps law wins, but more likely the law gets changed. Judge Roesch pulled out a massive hammer and got everyone’s attention, but that hammer is too big to swing.
So what can the agencies do? Develop an Incidental Take permit in sixty days? No, they’re huge documents. That isn’t a possible thing. And what could that permit say, anyway? It can’t say that that we can operate the way we do now, because that doesn’t accord with the California ESA. Change the pump operations, so that the State of California actually encounters significant sacrifice for a threatened species? I’d love to see it, but don’t predict that. Do legal and bureaucratic maneuvering to postpone the deadline and really, really promise to write an Incidental Take permit that will be incrementally better than we have now? Yeah. That*.
This was an expensive way to get that to happen. No doubt that court case and our response cost a lot. Rushing about addressing this in response to a court order will make the work more expensive than it would have been if nicely planned in advance. The physical results from this will be new documents and some tweaking to pump operations. It may make pumped water more expensive, but that isn’t certain. The side effects were a sharp reminder to the agencies that the water world isn’t entirely self-ruled and an outside judge can give us a rough shake. That’s not a bad thing. And finally, this ruling is one more strong piece of evidence that we cannot operate the Delta in a way that is consistent with the opposing goals of moving lots of water south and maintaining a functioning Delta. The sixty-day deadline has people freaked at the incredible costs of shutting Delta pumps, but that would be a predictable, reversible shut-down. We risk those costs all the time, but when Delta levees collapse, we’ll have no warning and it’ll take months or years to fix. This ruling should increase the pressure to evaluate a peripheral canal to see if it is a better option.
*Keep in mind that we don’t know what fish-ideal pump operations would be, even if we believed they were worth the cost in water to southern California and wanted to switch. We will be promising a document based on knowledge no one has.
Also, folks. Would you like me to go through and provide links for my assertions in this summary? I could, but I don’t know if you guys want to do a rigorous evaluation of this, of the sort that would mean going back to my original sources to see if I’ve read them right.
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Superior Court Judge Roesch ruled last month that the California Department of Wtr Rsrcs was in violation of the California Endangered Species Act and the California Fsh and Gm Code for operating the Harvey Banks Pumping Plant without an Incidental Take permit from the Department of Fsh and Gm. Judge Roesch said that Wtr Rsrcs had sixty days to get an Incidental Take permit, or he would shut down the pumping plant until they got one. I’ll remind you that the Harvey Banks pumping plant is the primary source of water for about half the agriculture in the San Joaquin Valley and most of Los Angeles.
Couple thoughts. First, the power granted under the Endangered Species Act is awesome. Not awesome like way cool and gnarly, awesome like unbelievably vast and absolute. To save a species, a judge can stop any project; economic costs are explicitly not a factor in the judge’s decision. At any economic cost a judge can take nearly any action. Second, you don’t realize that because it never happens. Judges never do that, except Judge Roesch, who has monster-sized stones. Judge Roesch looked the state in the eye and said “Six or seven billion dollars worth of agriculture this year? Drinking water for the City of Los Angeles? The way you state agencies have done business for decades? Fuck you, state of California. I want a piece of paper that shows me you are protecting a small ugly fish. Sixty days, State of California.” (Um, that is my paraphrase. You will not find that in the decision.) I have HUGE respect for Judge Roesch.
That said, while his decision is as good as any of his choices, I don’t think it was actually good. Whenever I know a little about these complex environmental crises, I come to believe there are no straightforward remedies. In this case, I think the physical problem is very difficult, and the agencies have worked out a series of work-arounds that are a decent job by thoughtful, informed professionals, swayed by political influence, and far from compliance with the law. I can’t see a good way for a judge to bring them back in compliance with the CESA. For all the judge’s authority to stop the pumps until Wtr Rsrcs gets an Incidental Take permit, I can’t see it really happening. It is simply too big. If you are balancing water for the lower half of the state against a bureaucratic requirement, the requirement must lose. If you are balancing water for the lower half of the state against the rule of law, perhaps law wins, but more likely the law gets changed. Judge Roesch pulled out a massive hammer and got everyone’s attention, but that hammer is too big to swing.
So what can the agencies do? Develop an Incidental Take permit in sixty days? No, they’re huge documents. That isn’t a possible thing. And what could that permit say, anyway? It can’t say that that we can operate the way we do now, because that doesn’t accord with the California ESA. Change the pump operations, so that the State of California actually encounters significant sacrifice for a threatened species? I’d love to see it, but don’t predict that. Do legal and bureaucratic maneuvering to postpone the deadline and really, really promise to write an Incidental Take permit that will be incrementally better than we have now? Yeah. That*.
This was an expensive way to get that to happen. No doubt that court case and our response cost a lot. Rushing about addressing this in response to a court order will make the work more expensive than it would have been if nicely planned in advance. The physical results from this will be new documents and some tweaking to pump operations. It may make pumped water more expensive, but that isn’t certain. The side effects were a sharp reminder to the agencies that the water world isn’t entirely self-ruled and an outside judge can give us a rough shake. That’s not a bad thing. And finally, this ruling is one more strong piece of evidence that we cannot operate the Delta in a way that is consistent with the opposing goals of moving lots of water south and maintaining a functioning Delta. The sixty-day deadline has people freaked at the incredible costs of shutting Delta pumps, but that would be a predictable, reversible shut-down. We risk those costs all the time, but when Delta levees collapse, we’ll have no warning and it’ll take months or years to fix. This ruling should increase the pressure to evaluate a peripheral canal to see if it is a better option.
*Keep in mind that we don’t know what fish-ideal pump operations would be, even if we believed they were worth the cost in water to southern California and wanted to switch. We will be promising a document based on knowledge no one has.
Also, folks. Would you like me to go through and provide links for my assertions in this summary? I could, but I don’t know if you guys want to do a rigorous evaluation of this, of the sort that would mean going back to my original sources to see if I’ve read them right.
posted by Megan at 4:29 PM
13 Comments:
In addition to Wtr Rsrcs I'd also change R0esch and H4rv3y B4nks. And still it'll be pretty googleable.
Oh, and the outbound links can make a difference too, but those are harder to mask for google and still make them useful for people reading the post.
I love to see brinksmanship at play. Next, the Department should just sit and do nothing for 60 days and just dare the judge to shut down the pumps. Stones? Threats don't require stones.
Stubbornly doing nothing is probably the only thing that could get that judge mad enough to enforce his ruling.
Seems to me you're trying to have it both ways in this post. Would you really "love to" see the outcome of the entire state of California experiencing significant sacrifice for the sake of some harm to a small, ugly, fish? Really? I don't go all the way with cost-benefit analysis, but there is some sensible moral core to it that I think one has to grapple with. If California was going to experience significant sacrifice, I can think of better causes to experience it for.
Federal judges do have a ton of power, though -- see the California prison system. Might be surprising how much he can do.
Very interesting post. I read this on the same day that a report has said that the world's poor are the most vulnerable to climate change and after watching a BBC report that suggests that 400 million people's lives could be affected by water shortages in the Ganges plain.
Marcus is right about the power of federal judges, but Roesch is a CA Superior Judge, and therefore has limited power. The California Endangered Species Act is much like its federal cousin, but not identical. I imagine the judge's decision will quickly and successfully be appealed away by the CA DWR.
Megan, is 60 days mandated by statute? Or can the judge grant an extension once he sees that creation of a proper permit takes longer?
Count me among the people who are unsympathetic to the state on this one. Everyone with at least half a brain has known that for the entire lives of anyone now in being, California has been seriously overdrawn in its abusing nature accounts. Sooner or later a check's going to have to get bounced.
CharleyC
Marcus:
The comparison to TVA vs Hill isn't too farfetched. Stop a dam for a snail?
To the extent that the fish is a proxy for the health of the Delta, I'd be happy to see people taking it very seriously. And as much as agencies have been saying, 'yeah, yeah, yeah, we'll get to that and when we do, it'll be great. Here, read this plan.", it is nice to see a judge say that they must do it NOW. And as much as agencies are in the grip of water purveyors, it is nice to see someone with power extending the spectrum of responses out towards the environment. Creates some new solution spaces when someone yanks the field wide open. And the agencies were rather embarrassingly out of compliance; their five-document work-around is probably as good as anything they'll produce in response to this decision, but they can freakin' dot their i's and cross their t's like private citizens must.
If you caught me on another day, though, I'd probably start thinking about the hurt to the farmers and feel bad for that. (Although they aren't uniformly sympathetic, there at the south of the Valley.)
Wesley:
Wtr Rsrcs is trying. But it is a little blatant that they don't have an incidental take permit. At some point "it's complicated and we did this other stuff instead" is hard for a judge to excuse.
CharleyC:
Sixty days was the judge's first grace period. I think he can extend it.
Yeah, I don't mind seeing someone point out some harsh realities in this case.
Thank yous! This kind of water rights and politics vs engineering is what keeps me here. Oh, and the occasional reference to amusing fetishes. Don't stop that either.
I'm fascinated by this kind of lawsuit, because it boils down to the state being called out for acting like the disorganized herd of distinct little departments that it is. Politicians pass laws like the EPA to satisfy some interest group, and also demand cheap water and electricity.
My thinking is that the power under the EPA is awesome ON PAPER. But limited in practice to what the enforcers can get away with.
I'd bet a large sum of money that nothing huge changes due to this. There'll be extensions, half-assed compliance (hey, having an incomplete document is a different lawsuit than not having one), and other delaying tactics until the legislature steps in and makes an exception to the law.
I like links to assertions, but I'd rather see the topic on your blog than wait for you do to research and maybe never get to it. Links also HUGELY increase googleability.
this post and the one two up about the Colorado River going into drought reflect huge (ahem, make that HUGE) changes in the water business in California going on right now.
As an atty, I can assure you that the judge was correct in the law.
As far as the 60 days goes, the judge has not finalized his decision. Once it is finalized, then D_R can appeal, and seek a stay of the ruling pending appeal. but D_R will lose on appeal.
so D_R doesn't want the judgment finalized. instead, they're going to want for the judge to hold this case in this never-never land where D_R and FnG can dicker over terms for the next year.
(i understand that D_R is looking to rely on a very obscure provision of the FnG Code under which FnG can certify compliance with the federal biop.)
we can also expect the Stxte Wxter Cxntrctrs (who buy the water that D_R pumps) to get involved in the case (it's called "intervening") and push the case towards an acceptable resolution (for them).
Francis,
Thanks so much for writing in, and thanks also for delaying the day when I get called into a boss' office for a talking to.
The realities of shortage, climate change and risk of flood mean that lots of issues are up in the air. Re-plumb the Delta? New ways to move water around? New allegiances?
Dramatic stuff.
Megan,
while I'm not your attorney, I suggest you take a look at your employee manual on termination. As an employee of the State of California, you have the protections of the First Amendment (unlike us folks in the private sector). D_R has limited authority to terminate / punish you for exercising your free speech rights.
on more entertaining matters, I'd love to hear more from you about what's going on in the Delta. Given the population crash of the smelt, it seems unlikely that the federal FnWS can continue issuing biops, but if it doesn't how does D_R operate the Tracy pumps?
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