Where is it written?

Metropolitan Water District of Southern California's lawyers filed a legal brief last week that argues that the drastically crashing population of Delta Smelt cannot be used as an argument for curtailing water shipments from the Delta to LA. The Delta Smelt, they say, is not under the protection of the federal Endangered Species Act because it only lives in one state. (1)

Perhaps California's Endangered Species Act will protect the smelt. However, Metropolitan's brief brings up a far more important issue.

But, first, already slipping beyond the living memory of Californians is the Colorado River Agreement in the first Bush term. Bush appointed a Colorado attorney general, Gale Norton, secretary of the Department of Interior. Norton brought with her Colorado's top water attorney, Bennett Raley. Raley's assistant, Californian Jason Peltier, was executive director of the Association for California Water Agencies. The result of the negotiations on the Colorado was that the upstream states would keep more and Southern California would get less. Since then, Metropolitan has been buying water contracts wherever it could in Northern California and the last three years of pumping out of the Delta have been the heaviest in history and have contributed greatly to the "sudden" collapse of the federally endangered Delta Smelt populations.

This water war was inevitable, but Metropolitan's argument raises an interesting question. This species of smelt is limited to the Delta. The Delta is its home. It has no other. Its home is being destroyed by Southern California water agencies 400 miles away, which are providing water for a growing population of people, many of them who have moved from far away to Southern California.

Let us speak the unspeakable. The smelt cannot move. The people can move and, in many cases, have moved to Southern California, a desert region without enough local water supplies to support a tiny percentage of its present human poplation.

Why can't the people move away from Southern California to avoid extinguishing this species of fish and once again damaging the salmon populations, which cannot spawn in LA storm drains any more than Delta smelt can migrate to Beverly Hills swimming pools.

People can move. They have demonstrated their ability to do it, time and time again. Wildlife species have a harder time relocating.

"Where is it written?" ask the brilliant Metropolitan water attorneys. "Where is it written" that a species specific only to one state can be covered by the federal ESA?

To such a sophisticated and expensive rhetorical question, one might reply with another: Where is it written that Southern California has the right to seize Delta water, gravely endangering one or more species of fish, because it has insanely fomented growth in its arid region so far beyond the carrying capacity of its resources that the word "carrying capacity" uttered aloud in Metropolitan lawyers' tennis clubs might be cause for suspension or revocation of membership?

Other questions arise. Humanity, of course, asserts the right to dominate lesser species. It doesn't have to be written down. But it gets trickier when the south exerts its domination over the north in our state water wars, because the south has a larger population and therefore more political representation. Then there is a good question for academics with the resources for such studies: a team of University of California professors ought to try to come up with an approximate figure of how many millions of dollars are spent annually by developers, water agencies, local, state and federal government agencies (including UC) on propaganda, lobbying and lawyers to defeat environmental laws and regulations. A publicly financed institution like UC ought to be the ideal site for such a study in view of the amount of money public agencies like UC spend to fight environmental law and regulation.

Bill Hatch

(1) http://www.sacbee.com/content/opinion/story/13895995p-14734826c.html

Editorial: LA's new water theory; Lawsuit: Feds can't protect Delta smelt
Sacramento Bee – 11/23/05

For years the Metropolitan Water District of Southern California has tried to assure a skittish north that it isn't looking to harm the Sacramento-San Joaquin Delta. Sure, it wanted water for its 17 million customers, but in a safe, reliable way.

The Delta these days is in an environmental free fall, its fish species crashing to record low numbers. And as this is happening, Metropolitan and other water districts are advancing a legal theory in court that the federal Endangered Species Act does not apply. For Southern California to attack a key environmental law during the Delta's worst environmental crisis is hardball that harkens back to water tactics of yesteryear.

Why wouldn't federal law pertain to the Delta smelt, a listed species meriting protection?

The smelt, according to a legal brief filed by Metropolitan and all of the State Water Project contractors, "have no apparent role in interstate commerce." And the smelt don't swim between two states. Its habitat, the brief continues, "is located entirely within the state of California." Therefore in this lawsuit, Metropolitan and fellow water pumpers "intend to raise the issue of whether the Endangered Species Act can properly be applied to regulate and protect purely intrastate species."

The theory may ring some bells. It came up during the confirmation hearings of Supreme Court nominee John Roberts.

He had once opined in a case that a "hapless toad" isn't protected by the federal Commerce Clause because the toad, "for reasons of its own, lives its entire life in California." Roberts is now chief justice of the Supreme Court. Whether this hapless toad, or the Delta's hapless smelt, are truly protected under the federal Endangered Species Act remains to be seen.

To protect the smelt and migrating salmon, state and federal agencies for years have curtailed pumping from the Delta during certain times. The same agencies are looking to pump more water at other times, resulting in a net increase in pumping. The Natural Resources Defense Council is suing the federal government over the new pumping strategy (NRDC v. Norton, Case No. C 05-00690 CW). Southern California makes its "hapless smelt" argument, among others, in this case.

Fortunately, California has a state Endangered Species Act. It protects the Delta smelt. But any law is subject to change, either through a decision by courts or legislators.

For Southern California to try to whittle away at Delta protections is an extraordinary action. But Metropolitan staff says its board was never consulted beforehand about advancing the new "hapless smelt" legal strategy. Wow. Who's in charge down there?

To find balanced, lasting solutions in the Delta, the state desperately needs Metropolitan to reduce its dependency on this estuary and to play a centrist role between the hard-line positions of agriculture and the environmental community.

The behavior of Metropolitan in this lawsuit, by seeking to undermine federal protections of the Delta, is radical, reprehensible and revealing. #