[Cross-posted from Evironmental Law Prof Blog]

By Karrigan Bork and Keith Hirokawa

Living the good life has often meant finding ways to allow for growth and construction while ostensibly protecting the natural environment on which we depend. Want to build a housing development, but there’s a wetland in the way? Mitigate the harm by building a new one somewhere else. Want to dam a river, but there’s a salmon run in the way? Build fish passage around the dam. If that’s not feasible, build a hatchery instead. Want to log a forest, but worried about loss of downstream ecosystem services? Allow the harvest, with buffers and a few trees left behind to maintain essential services. Techno-optimism and overconfidence makes it easy to say yes and assume we can mitigate the impacts. Saying yes is much easier than saying no.

Unfortunately, these creative approaches often fail. Constructed wetlands fail to reproduce the essential hydrologic or biodiversity or other functions of natural wetlands. Fish passage fails to get enough fish up and down stream to keep populations viable. Hatcheries can’t sustain fisheries over the long term in the same way that habitat can. Even regulated logging can degrade downstream ecosystem services.  As a result, our good environmental intentions have paved a path to widespread degradation.

Sometimes it is due to a lack of effort or an unwillingness to spend the necessary funds, but often mitigation fails despite the best intentions. It is difficult to predict how natural systems will respond to perturbation, and recreating systems is even harder. The uncertainty of these allow-but-mitigate decisions is critical: we depend on functional natural systems, and failed mitigation risks our future. But our current approach allocates the risk of bad decisions to the environment. That is, when mitigation fails, the environment and the public, not project proponents, pay the price. There are very few consequences to the parties responsible for mitigation if they get it wrong.

Successful mitigation requires that mitigation associated with a regulatory approval be designed to effectively neutralize the damage, rather than simply to ensure that permits are issued and construction commences. Embracing some form of the precautionary principle might help, but we seem unwilling to put off decisions or simply deny projects with uncertain impacts. Iterative adaptive management with long term monitoring might help, but this approach often stumbles due to the difficulty in refashioning policies. If we’re going to keep relying on engineering or policy fixes to soften the blow (and all evidence suggests that we will), we need a better way to allocate environmental risk.

Fortunately, we have faced this problem in other contexts, and policy makes have developed productive ways to manage uncertainty. Applying these approaches more broadly might reallocate environmental risk away from the environment and the public and place it on project proponents. Such a reallocation internalizes the risk for project proponents, leads to better environmental outcomes, and should lead to better environmental decisionmaking.

For example, local governments often require developers who seek approval for new developments to provide needed public infrastructure improvements (e.g., roads, traffic control devices, sidewalks, water and sewer pipes, etc.) to reduce new congestion and defray the public costs of the new development. Because new development brings in higher use of public infrastructure, these improvements allow cities to ensure that developers pay more of the public costs of their developments. But if these improvements are poorly constructed or otherwise prone to failure, they can make the community worse off than before—more people, more expenses, and failed mitigation. This parallels the problems with failed environmental mitigation projects.

Local governments sometimes address this risk by requiring developers to post performance bonds. The developer purchases a performance bond from a third party, called the surety, a company that is “ensuring” the developer’s infrastructure work will meet relevant requirements. If the developer’s work fails to meet the requirements the government recovers funds from the surety which (ideally) are sufficient to bring the work up to par. Thus performance bonds allow developers to proceed with building their projects by guarding against the uncertainty of whether the required improvements will perform. The local government approving the project no longer bears the risk of the developer’s failure.

Financial assurances, in the form of bonds, insurance, or other mechanisms, could similarly play a more significant role in other areas of environmental law. New fish passage projects required for dams could carry insurance that would fund additional construction or even dam removal if functional fish passage proved impossible. Logging projects could require bonds that would pay for downstream remediation if efforts to mitigate impacts to the forest’s ecosystem services proved inadequate.

The idea of environmental performance bonds or other financial mechanisms to ensure performance is not new, but it has been vastly underutilized. For example, an assurance approach is also used in wetland mitigation and stream mitigation for Section 404 permitting under the Clean Water Act. Under regulations issued in 2008, 404 permits issued by the Corps of Engineers require financial assurance based on performance standards for newly constructed wetlands, which should ensure that the new wetlands adequately mitigate the wetlands lost through the permitted dredge and fill. The financial assurances, which may take the form of bonds, insurance, or other mechanisms, are generally only required for 5-10 years, however, a time frame too short to determine whether the new wetlands will actually achieve their mitigation requirements. Bonding for mine reclamation and financial assurances for hazardous waste treatment facility closure provide other examples, although such assurances are often insufficient to cover actual reclamation costs (sometimes by an order of magnitude).

We tend to assume success and proceed in face of uncertainty when other parties bear the risk of failure. We will also continue to get many mitigation decisions wrong. Thus, we need to reallocate the environmental risk away from the public and the environment. In this context, performance bonds or other financial assurances can reallocate the risk and increase the likelihood that mitigation will succeed, but this approach has been vastly underutilized to curb the current risk of loss in environmental permitting.

[Cross-posted from California WaterBlog]

By Karrigan Börk, Andrew L. Rypel, Sarah Yarnell, Ann Willis, Peter B. Moyle, Josué Medellín-Azuara, Jay Lund, and Robert Lusardi

This week, news emerged of a State Senate plan that would spend upwards of $1.5B to purchase senior water rights from California growers. Under California’s first-in-time, first-in-right water allocation system, senior water rights are filled first, before more junior right holders get their water. The proposal is ostensibly promising. Because of widespread diversions, the aquatic biodiversity of California has been effectively exposed to chronic drought every year, and additional flows may help native species. If purchases can quickly add additional water to rivers in the right places and at the right times, they could benefit ecosystems and endangered species, like Chinook salmon and delta smelt (Moyle et al. 2019, Obester et al. 2020). But it could also easily become a payoff for wealthy water holders with marginal benefit for ecosystems, species, and people. The potential for abuse is particularly troubling when the State is using public funds to buy water, which technically belongs to the people of the state and which the State can already regulate to achieve the same aims. As the old saying goes, the devil is in the details. 

This blog highlights some important considerations for decision makers on making effective environmental water right purchases. Below are several questions and themes for a successful water purchasing program.

Does purchasing water rights actually result in more water for ecosystems?

Water rights in California are complicated, and there are many ways a water right purchase could not add appreciable water for ecosystems. 

First, many water rights exist only on paper. Some right holders only use a portion of their water right in most years and can only use the full right occasionally, e.g., in very wet years. The state of the data and reporting system in California, especially for senior water rights, makes it challenging to know how much water senior right holders are entitled to and how much water they actually use. And we’re most interested in their consumptive use – the share of water use that becomes available and legal to sell under California law – a quantity that’s even harder to pin down. Established legal and regulatory process exist to dedicate real water rights to the environment. California Water Code Section 1707 provides a mechanism to transfer water rights to instream use, and it, combined with other water code sections on water transfers, does a fair job of making sure that what’s being transferred is real water that will actually increase flows and be protected from other users. Practitioners have already developed practical guidelines for successfully completing the 1707 process. The State must take care to purchase real wet water rights that will result in enforceable instream flows. 

Second, water transferred to instream use needs to stay instream. On many rivers, the full flow of the river is already spoken for through existing rights, often many times over; California has allocated up to 1000% of natural surface water flow, with most of these water rights issued in the Sacramento and San Joaquin rivers. If purchased rights are simply retired or not otherwise protected for ecosystem purposes, then holders of other existing water rights can (and often will) simply take the water. 

Third, even with an effective mechanism for selecting real water rights and protecting them instream, improvements to monitoring and enforcement are essential to ensure true increases in instream flows. Many diversions are only roughly monitored, such that neither the water user nor the State knows exactly how much water is being used. Many river stretches lack flow gages, so it is difficult to quantify how much water remains instream (though SB 19 is attempting to address the limited network of stream gages in California). And the Water Board lacks adequate resources to enforce existing limits on water rights. The State needs open and reproducible data on diversions and flows, along with a meaningful enforcement threat to ensure any water set aside for environmental benefit remains in the ecosystem.

Finally, these water rights should be “new” water. The Water Board, through its Bay Delta Water Quality Control Plan, is already reducing water rights to protect public trust uses and water quality in the Bay Delta watershed. Water users are negotiating over Voluntary Agreements that could be a part of that Plan. In addition, many growers will need to fallow some fields to meet the mandates of SGMA. Many state and federal laws already circumscribe many water rights to protect instream water uses. Purchases with public funds should be focused on water rights that right holders would otherwise use, so the funds don’t go to pay for water that would have remained instream anyway.

What price should California pay?

The Water Board already has the power to reduce water rights to protect the public trust or to ensure water is used reasonably so as not to destroy public resources, and it has previously exercised that power. They consistently win the resulting lawsuits. California could legally and constitutionally acquire much of this water through other mechanisms, without paying for it. So what exactly is the State paying for here? 

In a nutshell, the state would pay for acquiring water quickly, with less political resistance and bureaucratic wrangling, and with less political ill-will and fewer messy and protracted lawsuits. That might make sense; we’re in a climate crisis, and salmon and many of California’s imperiled species don’t have time to waste. But it also means the State should not be paying full price. Water use reductions to support instream flows could occur through other government actions, without a State buyback. A water right that is sometimes curtailed by the state during drought due to endangered species or public trust concerns simply isn’t worth as much as a water right that doesn’t face such regulation. The question is whether water right holders get paid something now for their right or lose some of this water right with no payment after a protracted and expensive fight into a rapidly changing future. Prolonged litigation isn’t as advantageous to current water rights holders as they might seem. Longer and deeper curtailments are possible given the trajectory of California’s climate, meaning the right could become worth even less in the future.

The best approach to pricing might be something like the reverse auctions that The Nature Conservancy is already using to generate migratory bird habitat. Under this approach, water right holders bid to sell their water to the state, and the lowest bids would be more favored, provided that they are real wet rights, as discussed above. This should be coupled with continued pressure from the Water Board to exercise their existing powers to reduce water available to right holders, as they did in the last drought, to generate conditions that would encourage water right holders to sell. And, as we’ll discuss in further detail, another complexity is that it’s not just the cheapest water the state should buy, but the cheapest real water in the right place at the right time for the ecosystem (see point 3 below). Paying full price for water rights could amount to a giveaway to wealthy water right holders, but the reverse auction model can avoid this pitfall.

Paying public money for a publicly-owned and regulated resource will strike some advocates as morally wrong. They might argue it sets a dangerous precedent of buying out those who oppose regulation or treating water rights as a more concrete form of property than they actually are. Legislators should be aware of this philosophical opposition and must carefully craft the purchase program to ensure it provides enough water and ecological benefits to merit the actual and political costs. Because California water already belongs to all Californians, and water rights are subject to continuing State supervision, the State should make sure the funds they dedicate go as far as possible.

What water, when, and where?

What are the precise goals of these purchases? The plan may become the beginnings of an ‘environmental water right’. This would be a positive step. 83% of California’s endemic fish species are declining (Moyle et al. 2011). Furthermore, outmigration survival of juvenile Chinook salmon is strongly linked in a threshold manner to river flows (Michel et al. 2021). Thus additional flows could benefit endangered species, especially if deployed strategically. However, if additional flows are simply gobbled up by other water users downriver or deployed in the wrong places and times, the environmental benefit to people and ecosystems could be nil. Water budget and accounting mechanisms are needed to ensure water is getting where and when it is most needed.

“When” matters.

The ecological value of water changes over time; both between seasons and across years. For example, additional flows during drought may yield more ecological return on investment than increased flows in wet years. As one heuristic, average annual runoff in California is 71M acre-feet. Thus a total of 200,000 acre-feet of additional water (the figure provided in the linked article above) is only 0.3% of the average water budget. However, runoff in drought years is much lower. Runoff during the 1977 drought year was only 15M acre-feet; so 200,000 acre-feet is 1.3% of the water budget in such dry years. An accounting or water budget that details when additional flows would be available is needed to accurately track the availability of surplus water.

The value of water for economic uses also changes over time. Opportunity costs of water in the irrigation season of dry years are particularly high. Thus creating a buffer in wet years might be more cost effective than buying out agricultural water use during dry years. A buyback program that considers a baseline amount plus dry-year option may reduce uncertainties for both farming and ecosystem needs.

“Where” matters.

There are better and worse places for additional water. Adding high quality water is valuable, so water rights in spring-fed streams and groundwater-dominated rivers have high potential for adding higher value than simply additional flow volume due to their unique water quality. Spring-fed and groundwater-dominated streams are more resilient to climate change than strictly surface runoff-dominated streams, and, as a result, they support robust ecosystems. 

Adding significant amounts of water to tributaries can make a significant difference, in part because less water is needed to enhance these habitats. Similarly, adding water to coastal rivers, which may be less complicated and easier to monitor, could result in significant gains.

On maintem rivers, giving juvenile salmon and other native fishes better access to productive riparian and floodplain areas could support aquatic biota. Data from a host of studies demonstrate that salmon grow better when exposed to floodplain habitats (e.g., Katz et al. 2017, Holmes et al. 2021), and new studies are testing potential survival benefits for floodplain-reared salmon. But this may not require purchases of water rights; permanent easement arrangements, long-term conservation easements and/or NRCS programs could provide similar benefits at less cost and with more impact than just adding water to maintem rivers. Strategic tributary investments are likely to often provide greater and more sustainable ecosystem value compared to large mainstem purchases, where many other users, especially in the Central Valley, bid up water prices and the marginal proportions of flow improvements are smaller.

Equity and Social Justice.

In 2021, the California Water Board released Resolution No. 2021-0050, titled “Condemning Racism, Xenophobia, Bigotry, and Racial Injustice and Strengthening Commitement to Racial Equity, Diversity, Inclusion, Access, and Anti-racism.” This remarkable document acknowledged that the “Water Boards’ programs were established over a structural framework that perpetuated inequities based on race,” and it provides extensive background on the systematic exclusion of many groups from the water right acquisition process. The most senior water rights in California, those targeted by this purchase program, were acquired during a period when racism was the norm, when women often lacked independent legal identity, and when Asian people were unable to become citizens, even though citizenship was open to most other races. Indigenous peoples were still subject to state-sponsored genocide and systematically disenfranchised of their land and water rights. As a result, most minorities and many women were excluded from acquiring water rights or land with appurtenant water rights. Most senior water rights were originally claimed by white men, and that disparity has continued. Buying out water rights now, as opposed to rationally regulating them, risks perpetuating that tradition. Because of the State’s continuing ownership and regulatory interest in water rights, the State still has opportunity to redress past injustices, as the Water Board resolution acknowledges. Early drafts of the legislation for the purchase program appear to recognize this history and attempt to mitigate some of the lasting harm through funding for increased access to drinking water for disadvantaged communities. Without intentional engagement to address these past injustices, the broader purchase program might result in better public control of water, but at the cost of extending inequities. 

Conclusions

The State Senate proposal offers the promise of real change in California water. It might help to move past a decades-long stalemate, protect important tributary and coastal rivers, and ensure the survival of imperiled species. It offers quick action that could create long-sought environmental water rights. But the details matter. This proposal could just as easily result in a very minor increase in mainstem flows that does little to benefit ecosystems, or even pay for water rights that aren’t worth the paper they’re written on. A decade from now, this might be seen as a turning point or just another expensive water scheme. 

At some point, transdisciplinary water and ecosystem experts need to be brought into the room. Scientists can assist policy makers to identify the locations, times, and dynamics of flows that can have the most environmental benefit (e.g., California Environmental Flow Framework). Further, transparent cost benefit analysis, water balance modeling, or ecological optimization provide important insight on when and how (e.g., functional flows) to best use additional water for the environment.

Although engaging with experts can be challenging and can occasionally stymie progress, scientists also deliver data-driven frameworks for optimizing investments and learning the most from an experiment. This knowledge works to ensure that decisions are ultimately based on sound science while also looking at economic and distributional effects in water reallocations. Management plans/processes that are transparent, reproducible and science-based often help. Indeed, some states have adopted democratic boards with a science-based mission to oversee management of natural resources within the context of the public trust. A similar model may be useful here.

Strong legal and scientific oversight will be essential to maximize the ecological benefits of purchases. We hope these suggestions provide encouragement and guidance for decision makers as they further consider water right purchases for the environment.

Karrigan Börk is an Acting Professor of Law at the UC Davis School of Law and an Associate Director at the Center for Watershed Sciences. Andrew L. Rypel is a professor of Wildlife, Fish & Conservation Biology and Co-Director of the Center for Watershed Sciences at the University of California, Davis. Sarah Yarnell is a Research Hydrologist at the Center for Watershed Sciences. Ann Willis is a Research Engineer at the Center for Watershed Sciences. Peter B. Moyle is a Distinguished Professor Emeritus at the University of California, Davis and is Associate Director of the Center for Watershed Sciences. Josué Medellín-Azuara is an Associate Professor at the University of California, Merced. Robert Lusardi is an Assistant Adjunct Professor and Research Ecologist in the Department of Wildlife, Fish & Conservation Biology and the Center for Watershed Sciences at UC Davis. 

Further Reading

Bellido-Leiva, F.J., Lusardi, R.A. and Lund, J.R., 2021. Modeling the effect of habitat availability and quality on endangered winter-run Chinook salmon (Oncorhynchus tshawytscha) production in the Sacramento Valley. Ecological Modelling, 447, p.109511.

Börk, K., and A.L. Rypel. 2020. Improving infrastructure for wildlife. Natural Resources & Environment.

Börk, K., A.L. Rypel, and P. Moyle. 2020. New science or just spin: science charade in the Delta, https://californiawaterblog.com/2020/03/15/new-science-or-just-spin-science-charade-in-the-delta/

Grantham, T.E., and Viers, J.H. (2014). 100 years of California’s water rights system: patterns, trends and uncertainty. Environmental Research Letters 9(8), 084012.

Grantham, T.E. and Viers, J.H. (2014). California water rights: You can’t manage what you don’t measure. California Waterblog.

Holmes, E.J., P. Saffarinia, A.L. Rypel, M.N. Bell-Tilcock, J.V. Katz, and C.A. Jeffres. 2021. Reconciling fish and farms: Methods for managing California rice fields as salmon habitat. PLoS ONE 16(2): e0237686.

Hollinshead, S.P. and J.R. Lund, “Optimization of Environmental Water Account Purchases with Uncertainty,” Water Resources Research, Vol. 42, No. 8, W08403, August, 2006.

Katz, J.V.E., C. Jeffres, J.L. Conrad, T.R. Sommer, J. Martinez, S. Brumbaugh, N. Corline, and P.B. Moyle. 2017. Floodplain farm fields provide novel rearing habitat for Chinook salmon. PLoS ONE 12(6): e0177409.

Lusardi, R.A., Nichols, A.L., Willis, A.D., Jeffres, C.A., Kiers, A.H., Van Nieuwenhuyse, E.E., et al. (2021). Not All Rivers Are Created Equal: The Importance of Spring-Fed Rivers under a Changing Climate. Water 13(12), 1652.

Medellín-Azuara, J., Paw U, K.T., Jin, Y. Jankowski, J., Bell, A.M., Kent, E., Clay, J., Wong, A., Alexander, N., Santos, N., Badillo, J., Hart, Q., Leinfelder-Miles, M., Merz, J., Lund, J.R., Anderson, A., Anderson, M., Chen, Y., Edgar, D., Eching, S., Freiberg, S., Gong, R., Guzmán, A., Howes, D., Johnson, L., Kadir, T., Lambert, J.J., Liang, L., Little, C., Melton, F., Metz, M., Morandé, J.A., Orang, M., Pyles, R.D., Post, K., Rosevelt, C., Sarreshteh, S., Snyder, R.L., Trezza, R., Temegsen, B., Viers, J.H. (2018). A Comparative Study for Estimating Crop Evapotranspiration in the Sacramento-San Joaquin Delta. Center for Watershed Sciences, University of California Davis. https://watershed.ucdavis.edu/project/delta-et

Michel, C.J., J.J. Notch, F. Cordoleani, A.J. Ammann, and E.M. Danner. 2021. Nonlinear survival of imperiled fish informs managed flows in a highly modified river. Ecosphere 12: e03498.

Middleton Manning, BR. 2018. Upstream: Trust Lands and Power on the Feather River. Tucson: University of Arizona Press. 256 pp.

Moyle, P.B., J.V.E. Katz, and R.M. Quiñones. 2011. Rapid decline of California’s native inland fishes: a status assessment. Biological Conservation 144: 2414-2423.

Moyle, P., K. Börk, J. Durand, T. Hung, A.L. Rypel. 2019. Futures for Delta Smelt, https://californiawaterblog.com/2019/12/15/futures-for-delta-smelt/

Moyle, P.B. 2021. Drought makes conditions worse for California’s declining native fishes. https://californiawaterblog.com/2021/06/27/drought-makes-conditions-worse-for-californias-declining-native-fishes/

Rypel, A.L. 2022. Nature has solutions…What are they? And why do they matter? https://californiawaterblog.com/2022/03/

Rypel, A.L., D.J. Alcott, P. Buttner, A. Wampler, J. Colby, P. Saffarinia. N. Fangue, and C.A. Jeffres. 2022. Rice and salmon, what a match! https://californiawaterblog.com/2022/02/13/rice-salmon-what-a-match/

Rypel, A.L., P.B. Moyle, and J. Lund. 2021. A swiss cheese model for fish conservation in California. https://californiawaterblog.com/2021/01/24/a-swiss-cheese-model-for-fish-conservation-in-california/

Willis, A.D., Peek, R.A., and Rypel, A.L. (2021). Classifying California’s stream thermal regimes for cold-water conservation. PLOS ONE 16(8), e0256286. doi: 10.1371/journal.pone.0256286.

Yarnell, S.M., Petts, G.E., Schmidt, J.C., Whipple, A.A., Beller, E.E., Dahm, C.N., Goodwin, P. and Viers, J.H., 2015. Functional flows in modified riverscapes: hydrographs, habitats and opportunities. BioScience, 65(10), pp.963-972.

[Cross-posted from CalMatters]

By Karrigan Bork

There’s a water fight brewing on the Kern River. The State Water Resources Control Board’s handling of the conflict will be telling for the future of California’s streams and rivers. 

If the water board takes seriously its duty to protect the public interest, this conflict could lead to better water management statewide.

The Kern River starts on the slopes of Mount Whitney and (sometimes) flows through Bakersfield. It once supported a vast ecosystem of wetlands and lakes, teeming with wildlife and offering an escape from the heat of the San Joaquin Valley. As with several California rivers, every drop of water in the Kern River has been diverted since the mid-to-late 1800s, destroying the wetlands and draining the river.

California laws are supposed to protect rivers from this fate, and the California Supreme Court has ruled that all water allocations must consider the public trust doctrine, which protects the public’s interest in healthy rivers and streams. However, Kern River water rights are so old that they have never been assessed against modern environmental laws. 

Under the state Supreme Court precedent, the water board has both the power and the duty to adjust antiquated water rights to protect public trust interests, but it seldom does. Fortunately, the water board now has an opportunity to reassess these rights.

A 2007 California appellate court decision struck down some of the oldest water rights on the Kern because the right-holder failed to use the water. This unusual ruling means that new rights to Kern River water might be available for the first time in more than a century. Nearby cities and area water districts pounced, filing six applications for any unclaimed water. Public-interest organizations suggest the water should be used to restore portions of the Kern.

Before the water board can allocate the water, it must determine whether the forfeiture actually freed up any water. The water board’s Administrative Hearings Office is currently trying to determine how much water is already claimed under existing rights and whether there is any water left for the new applicants. Making this decision requires evaluating the historic Kern River water rights. 

The water board should take this opportunity to consider whether the existing rights adequately protect the public trust. If not, as the state Supreme Court has indicated, those rights should be adjusted to comply with modern law. But the water board seems poised to ignore the public trust in this phase of the proceedings. Instead, it plans to defer consideration of public trust until after it decides whether existing right holders can soak up all the available water. 

This approach assumes the validity of the old water rights and puts the public’s interests last, behind all the existing right holders. If the public only gets the leftovers, there will never be enough water for a healthy environment. That falls short of the Supreme Court’s mandate to the water board – public trust protections extend to all waters, not just whatever is left after everyone else takes their cut.

Under California law, the water board must determine whether the historic water rights adequately protect public interests. Over the past century and a half, California has become a leader in environmental protection, but our leadership has lagged when public interests and water rights clash. 

This conflict offers the water board an opportunity to set a vital precedent: that whenever the board considers claims under existing water rights, it will assess whether those rights are still valid in light of the board’s modern responsibilities to the public. 

Setting this precedent would put the water board on a path toward improved water management across California by adjusting historic rights to reflect modern priorities. The board has the authority and the responsibility to make the right decision. We’ve come a long way since the 1800s, and it is high time for these old water rights to catch up.

[Cross-posted from Environmental Law Prof Blog]

By Karrigan Bork

Professors Ruhl and Craig paint a vision of a 4ºC world marked by “discontinuous and often unpredictable transformation.” Nature, from climate to ecosystems to species, is hard to predict in the best of times. It’s a wild beast in a 4ºC world. This means that we will have to give up our efforts to tightly control nature and instead give her room. Room in a real, physical sense, like space for species to migrate and for seas to rise and for rivers to roam; and room in a metaphorical sense, by not harvesting and managing and controlling and consuming right up to the edge of destruction.

The only certain thing in this uncertain 4ºC future is change: The weather in many locations will be marked by increased variability, higher temperatures, more extreme precipitation events, and changes in total precipitation. Sea levels will rise. Storms will be more intense. In short, climate change will make many of our current climate expectations obsolete. Moreover, a 4ºC world does not just present a new set of stable conditions that society can assume will continue into the future; continuing unpredictable shifts in climate are a hallmark of a 4ºC world.

This is especially challenging because core aspects of our society, from infrastructure to farming to insurance to conservation, have been designed with the assumption of relatively predictable climate. Infrastructure, for example, is often tailored very narrowly to meet a predicted climate range, and flood insurance programs require levee protection designed to withstand a 100-year flood event in most areas. But in a 4ºC world, levees will face storms that exceed those design standards much more frequently than once every hundred years. We’ve often left ourselves a narrow margin of safety in all kinds of systems, from infrastructure to agriculture to environmental protection. This approach leaves little room for error, and the predictable climate that enabled this approach is ending. We’re moving into a climate that is predictably unpredictable. Our current world of just-in-time delivery, thin margins, efficiency, precise timing, and long supply chains is not built for the uncertainties of a 4ºC future. This problem extends to the ways we currently manage ecosystems, approaches that leave little room for nature itself.

Professor Dave Owen describes the prevailing ecosystem management ethos as “allow[ing] resource consumption right up to perceived brinks of illegality and . . . provid[ing[ just enough protection to avoid legal violations, but no more.” Managing at the brink of illegality is part of a broader problem of trying to manage natural systems within carefully delineated boundaries, under tight control. Of course, we actively manage ecosystems to protect particular species or provide particular ecosystem goods and services. But in many cases, as Professor Owen describes, we try to do so with little room for error, giving ecosystems only enough to deliver what we seek. Examples include just-in-time delivery of habitat for migrating birds, the deployment of just-in-time water management for fish protection, the provision of just enough protection for species to avoid a jeopardy opinion under the Endangered Species Act, and limitations on protections for desirable species to small habitat areas on the assumption that managers can unfailingly provide the precise conditions the species require.

The inclination toward these approaches is entirely understandable. They present the irresistible promise of using science, technology, and engineering in real time to meet the needs of nature while putting as few constraints on human activities as possible. Who doesn’t want more with less? In so many ways, it fits with our cultural zeitgeist. Even under current conditions, though, this approach often falls apart in the face of uncertainty and the inherent challenges of predicting natural system responses. And when these kinds of efforts fail, they generally place the burden of failure on ecosystems and species; they are not safe-to-fail approaches.

In an uncertain 4ºC world, tight management to achieve a narrow range of ecosystem conditions will be both increasingly expensive and increasingly impossible. The nature or character of an ecosystem is determined based on physical characteristics of the ecosystem, like precipitation, soil characteristics, temperatures, and on species availability (what gets introduced to the ecosystem) and the interactions between the species that find their way into the ecosystem. Changing any of those aspects of an ecosystem can produce a cascade of changes throughout the whole of the ecosystem, altering ecosystem aspects such as the abundance and kinds of species present as well as physical conditions in the ecosystem.

Climate change is already producing widespread changes in ecosystem conditions. Predicting exactly how a particular ecosystem will react to these changes is very difficult, but scientists can nevertheless predict that change is very likely. For example, based on increasing temperatures alone, more than one in every three local species in the Americas will be different in ninety years. The ecosystems that will develop in a 4ºC world are unpredictable, with no analog in today’s ecosystems, and tightly managing those ecosystems to provide desired outcomes will be tremendously, well, uncertain.

Instead, managers must approach ecosystem management with humility, not an expectation of understanding and control. What, precisely, does managing with humility mean? I’m excited to flesh that out in future work, but as a baseline, humility counsels leaving time and space for nature. Physical space: Space for new wetlands. Space for rising seas. Space for shifting floodplains. Space for fire. Space for new species. Space and time for natural processes to develop and shift and adapt. And metaphorical space: relaxed expectations about our ability to control nature and predict the outcome of management actions, more conservative estimates of how species will respond to conservation efforts, more leeway in estimating water needs for nature, less belief in the power of science and engineering to replicate natural systems.

In some ways, leaving space for nature fits well with our 4ºC infrastructure challenges.  Reconciliation ecology, defined by its originator Michael L. Rosenzweig  as “the science of inventing, establishing and maintaining new habitats to conserve species diversity in places where people live, work and play,” provides ways to integrate human and natural systems needs. Thus, to use one example, perhaps “space for wetlands and floodplains” becomes building sea walls and levees set far enough back from coasts and rivers to provide both improved flood protection and space for nature. Moreover, we must also consider how to integrate the inevitable human migration with healthy ecosystems: as people migrate to more hospitable places, we must leave room for nature in the new developments. And, although perhaps it is more restoration than reconciliation, as we manage our retreat from places made unlivable by climate change, we must not salt the earth, but rather rewild the lands and waters we leave behind.

Some states have begun to embrace this approach in their climate adaptation plans. California, for example, lists “prioritize natural infrastructure solutions” as one of its seven overarching principles for climate change adaptation and highlights the importance of restoration and conservation of natural systems to successful adaptation. This is a good start. But more broadly, we must recognize that tight controls of all kinds will fail in a 4ºC future, that the ecosystems of the future will not be the ecosystems of the present, and that nature needs space if it is to continue supporting life in the ways we have come to expect.

[Cross-posted from Environmental Law Prof Blog]

By Kevin Lynch, Shi-Ling Hsu & Karrigan Bork

Western water rights reflect a short and stable climate history, but that period of stability is ending. Looming climate change of 4°C will produce not only higher temperatures, but decreased snowpack, shifts in runoff patterns, and the dramatic shrinkage of giant reservoirs. The climatic changes that have already traumatized the West will only intensify and cross even more dangerous thresholds, necessitating the deliberate adaptation of water rights systems.

Hydrology in a Changing Climate

A climate-changed future is inherently uncertain, but a general consensus predicts a dire future for water supply in the arid West.  Precipitation patterns are the biggest source of uncertainty due to the potential increase in extreme weather events.  This could both increase and decrease water supplies as larger snowstorms could dump more precipitation in some years, while other impacts on the snowpack would lead to declines.  However, higher temperatures in the summer and fall are expected to offset potential increases in snowpack in most years, leading to an overall trend of less water supply in a warming future.  The Colorado River, which supplies vital water to seven states and 23 tribal nations, may experience flow losses due to temperature increases by more than 20 percent midcentury and 35 percent by 2100.  Intra- and inter-annual variability will continue as a hallmark of western water systems. In the Colorado River basin, for example, the impacts of a changing climate are already apparent as the current megadrought fueled by climate change recently led to the first ever federal water shortage declaration.  Experts urge us to plan for even worse impacts to come.

Looking beyond the Colorado River basin, a 4°C world leads to large declines in snowpack in the western United States, perhaps in the range of a 40 percent decrease due to generally less precipitation and shifts from snow to rain.  The snowpack in the Sierra Nevada mountains recently hit its lowest point going back at least 500 years. Decreasing snowpack reduces water availability throughout hot, dry summers, resulting in significant seasonal water shortages.

Warmer temperatures and less frequent precipitation also mean that even normal snowpacks do not necessarily bring relief from droughts.  For example, Colorado’s 2021 snowpack was almost normal, but because soils in many western watersheds were unusually dry, most of the water went into the soils and not into streams, rivers, and reservoirs for human uses.  Another driver of drought in a warming world is the increase in evapotranspiration caused by higher temperatures as plants need more water and evaporation from rivers and reservoirs increases. These factors point towards a drying and warming future in the southwestern United States, particularly in the Colorado River basin.

Water Law Historically Adapted to Hydrology

The changes in the West’s hydrology are very likely to produce changes in water law, which has historically evolved in response to differing climactic conditions. Early U.S. water law decisions drew heavily on English water law, establishing a system based on riparian water rights. Riparian rights come from ownership of land that abuts a watercourse, and they are generally limited to reasonable use of the water on the riparian land. Riparian rights have many other limits; they do not allow storage or long distance transportation of water, for example, and they are not absolute, leading to some uncertainty about the quantity and reliability of water. These limitations meant that riparian rights were poorly suited to western hydrologic regimes where seasonal (and total) water availability patterns require storage and transportation of water to maximize the benefits of available water.

California developed a system of appropriative rights based on the use of water, not on land ownership. Appropriative rights allow water storage and transportation, and these advantages led all of the states west of the Mississippi to adopt some version of appropriative rights. Coastal states like California and Washington, and midwestern states like Kansas and Nebraska, tend to blend riparian and appropriative doctrines, while drier western states like Colorado embrace a purer appropriative rights approach that does not recognize riparian rights at all. Appropriative water rights systems give priority to the first user of the water, an approach often styled “first in time, first in right,” so that later users may not get their full allocation of water in dry years. Maintaining appropriative water rights requires constant vigilance; these rights can be lost through disuse or to other users who take the water. Water rights are tied to the land and to its use; transferring the right to someone else or changing the place or use of the water generally requires permission of a state level water agency.

The appropriative rights and the blended appropriative/riparian rights approaches are both inherently based on historic hydrology and patterns of land use and ownership. This can make them a barrier to climate adaptation. For example, the first-in-time approach gives priority to the earliest water users, regardless of how well suited these uses are to a changing climate or changing societal needs.  Historical aspects of water rights thus sometimes allow lower value agricultural uses to take priority over domestic and industrial uses. Formally, water use is generally required to be reasonable and beneficial, but as a practical matter, courts and water boards rarely rein in inefficiency. Recent droughts have shown many existing uses of water to be even more anachronistic. Because most water in the West is already appropriated, in a drier, climate-changed future, a reordering of priorities seems necessary.

Consider California’s agricultural sector. Though productive and valuable, California's agricultural sector constitutes about 80 percent of the state's human water use while accounting for less than 3 percent of the State's GDP. The ag sector has become significantly more efficient in the last 30 years, using less total water to produce more agricultural value. Nevertheless, in some cases and in some years, California water currently used in agriculture would be more valuable as drinking water or as water to support ecosystems. Growing fewer almonds or making less milk and cheese will likely be necessary in a 4°C world. A successful water rights system should encourage and accommodate these shifts.

Further, use-it-or-lose-it requirements disincentivize water conservation or land use changes that could free up water for other users.  Riparian rights give strong rights to riparian landowners, a system that tends to maintain existing land uses and perpetuate distributive justice concerns. Use-based appropriative rights inherently value use over conservation or other "passive" uses, such as fish and wildlife habitat.

Finally, although existing water rights systems have succeeded in spurring economic development, they have done so at great environmental and social cost. The extensive, massive water diversions that have made California the most productive agricultural state in the United States also completely transformed the entire Central Valley and altered the ecology of much of the state, driving many native species to extinction.

Can Water Law Adapt to a Warmer Future?

How is the western United States to cope with a world that is warmer by as much as 4°C and chronically short of water? We suggest three steps, emphasizing that these represent just a few out of many constructive actions that might be taken to prepare for a much warmer, much drier American West.

New diversions must be evaluated under a conception of reasonableness that includes climate change. Western water law has always embedded notions of reasonableness and almost always been, at least formally if not in practice, predicated on some consideration of public interest. These terms have been either ill-defined or defined in a way that gives short shrift to considerations of conservation and passive uses. The phrase public interest has been infrequently deployed to protect passive or instream uses and has in some cases simply been ignored in water permit applications. Notions of reasonableness or beneficial use must take account of future scarcity of water and an increased need for conservation and domestic uses.

Existing reasonableness requirements must be enforced as a limit on current water rights. With climate change already well underway, many existing allocations of water are economically inefficient, with too little regard for non-agricultural uses. Because most water in the West is already allocated, current water uses must be re-examined and curtailed if they fail to meet a realistic reasonableness test that accounts for the drier, hotter realities of a climate-changed future.

States must actively secure water rights in preparation for severe and prolonged water shortages in the future. States must create new institutions to collect water rights as an effective stockpile against future scarcity, which may present more serious threats than the loss of crops or livestock. States must migrate some water and water rights into a governance mechanism that operates outside of traditional water law. A state-chartered trust instrument, such as a "Resources Trust," might be legislatively charged with gathering up water and water rights in order to act as a water supplier of last resort should the dire need arise. In hedging against severe and prolonged water shortages, such a Resources Trust might employ a range of legal instruments, such as options, to secure future supply.

- By Kevin Lynch, Shi-Ling Hsu & Karrigan Bork

Kevin Lynch is an Associate Professor of Law with Tenure at the Sturm College of Law.

Shi-Ling Hsu is the D'Alemberte Professor at Florida State University College of Law.

Karrigan Bork is an Acting Professor of Law at UC Davis School of Law.

[Cross-posted from California WaterBlog]

By Karrigan Börk, Peter Moyle, John Durand, T-C Hung, and Andrew L. Rypel

2020 was a bad year for delta smelt. No smelt were found in the standard fish sampling programs (fall midwater trawl, summer townet survey). Surveys designed specifically to catch smelt (Spring Kodiak Trawl, Enhanced Delta Smelt Monitoring Program) caught just two of them despite many long hours of sampling. The program to net adult delta smelt for captive brood stock caught just one smelt in over 151 tries. All signs point to the Delta smelt as disappearing from the wild this year, or, perhaps, 2022.

In case you had forgotten, the Delta smelt is an attractive, translucent little fish that eats plankton, has a one-year life cycle, and smells like cucumbers. It was listed as a threatened species in 1993 and has continued to decline since then. Former President Trump made it notorious when he called it a “certain little tiny fish” that was costing farmers millions of gallons of water (not true, of course).

As part of the permitting process for Delta water infrastructure, the USFWS issued a Biological Opinion (BO), written by biologists, that found that increased export of water from the big pumps of the State Water Project and the Central Valley Project would further endanger the smelt. The BO was then revised by non-biologists to conclude that increased pumping would not hurt the smelt. The reason given was that large-scale habitat improvement efforts, plus the development of a facility for spawning and rearing of domesticated smelt, would save the species. We have written a short, fairly readable, article for a law journal that describes why the revised BO will not save the smelt. We will not write further about the paper in this blog but encourage readers to give the full article a read (it is a free download).

So, is this the year the smelt becomes extinct in the wild? Frankly, we are impressed by its resilience (see previous California WaterBlogs on smelt status) but small populations of endangered pelagic fish in large habitats tend to disappear, no matter what we do, partly the result of random events.

Looking for delta smelt

We trawl clear Delta water

And find emptiness.

[Cross-posted from California WaterBlog]

By Thomas Harter, Steph Tai and Karrigan Börk

In 1972, the U.S. Clean Water Act (CWA) created a permit system for point source discharges to navigable waters of the United States – rivers, lakes, and coastal waters – with the goal of restoring and protecting their water quality. Typically, these permits are issued by the U.S. EPA or through state agencies to dischargers of wastewater, e.g., from urban and industrial wastewater treatment plants and to other dischargers of potentially contaminated water that reach streams by a pipe or similar conveyance. The goal was to provide some degree of regulatory oversight over such discharges.  In California, the State Water Resources Control Board implements the federal Clean Water Act using its authority under the Porter-Cologne Water Quality Control Act (Water Code, §13000 et seq.). Under the CWA, neither EPA nor the states are required to issue permits for pollutant discharges into groundwater or to nonpoint source dischargers.

In April, the Supreme Court decided on a case involving discharge from a wastewater reclamation facility owned and operated by the County of Maui.  In this case, the facility discharged 3 to 5 million gallons of treated wastewater per day into four injection wells about half a mile from the ocean.  Recent research showed that much of the injected waste eventually discharges to the ocean. Environmental groups sued the county for not obtaining a CWA permit, arguing that point source discharge of pollutants that eventually reach surface water is governed under CWA. All sides agreed that the case at hand involved a point source of pollutant discharge and that the pollution eventually reached the ocean. The disagreement was whether the CWA requires the permit only if the pollutant discharge is directly into surface water, as argued by the defendants (a “bright-line test”). Environmental groups argued that even if the pollutant discharge is via groundwater to surface water, the CWA permit must be obtained. The district court and the Ninth Circuit court ruled in favor of the plaintiffs. The Ninth Circuit court held that permits are required when “pollutants are fairly traceable” from the point source to surface water.

In its final 6-3 decision, the Supreme Court majority now rejects both sides’ arguments as too extreme and returned the case to the lower courts with further guidance.  On the “bright-line test”, Justice Breyer, writing for the majority, wrote “we do not see how Congress could have intended to create such a large and obvious loop hole in one of the key regulatory innovations of the Clean Water Act.”  On the “fairly traceable” approach, the opinion stated that such interpretation “would require a permit in surprising, even bizarre circumstances.”

Instead, the Court decision introduces the concept of a “functional equivalent of a direct discharge” as a guideline for when a point source discharge must obtain a permit. It cites the case of an injection well receiving pollutant discharge that then travels a few feet through groundwater into navigable waters as a clear case of “functional equivalent” to direct discharge. But it rejects the notion that such a “functional equivalent” exists in a case with “100 year migration of pollutants through 250 miles of groundwater to a river” and “likely does not apply” if “the pipe ends 50 miles from navigable waters”. The Court acknowledges that the concept of “functional equivalence” as the Court’s guideline leaves many point source discharges to groundwater somewhere between these extreme cases.  It relegates consideration of those cases back to regulators and lower courts, suggesting they consider the various groundwater flow and transport factors underlying individual cases – travel time and distance in particular, but also soils and geology, geochemical reactions, the locations where pollutants subsequently enter navigable waters, and “the degree to which the pollution (at that point) has maintained its specific identity.”

Importantly, the majority opinion does not expect a “vastly” expanded scope of the CWA, such that permits would be required, e.g., for the country’s 20 million septic systems. It does so in two ways: by emphasizing (and affirming) the long history of CWA implementation, which has, at times, required permits even if pollutant discharge was via groundwater into surface waters, but not under other circumstances. And, secondly, both the majority and dissenting opinions repeatedly underscore the important role and sovereignty of states in regulating discharges to groundwater and nonpoint source pollution (groundwater pollutant discharge to surface water is sometimes considered nonpoint source pollution of surface water).

The decision will not make it easier than in the past for either regulators or lower courts to make their determinations as to whether a point source pollutant discharge to groundwater that eventually affects surface water is subject to a CWA permit. But the decision sides squarely with the use of science. And it shows a remarkable acknowledgement of hydrologic sciences and the interconnectedness of surface water and groundwater: “Virtually all water, polluted or not, eventually make its way to navigable water. This is as true for groundwater.” Perhaps this statement missed the nuance that some groundwater, particularly in the western U.S., will instead be pumped by wells onto crops or pulled by plant roots from the water table to be evapotranspired into the atmosphere. But it underscores that the court made its decision knowing and applying hydrologic science. “Given the power of modern science, The Ninth Circuit’s limitation, ‘fairly traceable’, may well allow EPA to assert permitting authority over the release of pollutants that reach navigable waters many years after their release […] and in highly diluted forms.”, an application that the justices find inconsistent with the CWA.

The dissenting opinion of Justice Alito rejects the introduction of the “functional equivalence” concept as too vague and inconsistent with the language of CWA.  Given the authorities of states on matters of groundwater and nonpoint source pollution, he supports the “bright-line test”.  But importantly, Justice Alito instead refers to the definition of “point source” as a means to avoid the loopholes cited in the majority opinion as reason to reject the “bright-line test”:  He points out that, according to CWA, “point source[s] include [….] ‘any discernible, confined and discrete conveyance… from which pollutants … may be discharged.’ §1362(14).” The opinion continues to describe how the pathway created by pollutant discharge from a pipe onto a beach and ending in the ocean” or many of the cases that trouble the Court” would easily be covered by applying common definitions of “conveyance”, “discernable”, and “confined”.  Groundwater hydrologists may further point out something not mentioned and perhaps not considered by Justice Alito: that we do have scientific tools (as referred to by the majority opinion) to similarly describe some groundwater pathways as a conveyance that is indeed discernable and confined, “i.e., held within bounds”.  So perhaps Justice Alito’s argument, from a scientific perspective, would in practice not be substantively different from the scientific criteria that the majority opinion associated with defining “functional equivalent” point source discharge. Such an interpretation would add further support and a consistent angle to the overall spirit of the Court’s decision.

The Maui decision is already having a ripple effect in other areas of environmental concern.  Environmentalists have long been advocating against the use of coal ash impoundments—open pits for disposal of toxic byproducts left over from burning coal.  Many of these byproducts have allegedly moved from these impoundments through groundwater into streams and rivers.  Prior to the decision in Maui, power companies argued the CWA permitting program was inapplicable to impoundments.  But the Maui decision will likely lend weight to these challenges.

The Maui decision also will likely impact litigation over the federal administration’s repeal of the Water of the United States rule, a regulation under the Obama administration which clarified the views of the Environmental Protection Agency and the U.S. Army Corps of Engineers about the reach of the Clean Water Act.  In this repeal, this administration specifically stated, in response to commenters, that “A groundwater or subsurface connection could also be confusing and difficult to implement, including in the determination of whether a subsurface connection exists and to what extent.” U.S. Army Corps of Engineers and Environmental Protection Agency, The Navigable Waters Protection Rule: Definition of ‘‘Waters of the United States,” 85 Fed. Reg. 22,250, 22,313 (Apr. 21, 2020).  Promulgated by the agencies before the Maui decision came out, the agencies will likely have to wrestle with the Maui decision in subsequent challenges.

While the decision leaves some previous uncertainty over the interpretation of the CWA, and perhaps adds some, California dischargers are unlikely to face additional regulation under this decision. Under the Porter-Cologne Water Quality Control Act, California already requires permits for discharges to groundwater, even if they don’t meet the “functional equivalent” test outlined by Justice Breyer’s majority opinion. California regulators may need to adjust their approach to reflect that some of these permits will also serve as CWA permits under the state’s authority, but this should not impose significant new burdens on regulated entities. California’s robust implementation of a strong groundwater quality regulatory program, implementing state laws (including the Sustainable Groundwater Management Act, SGMA) and other federal laws governing discharge of pollutants to groundwater (Safe Drinking Water Act, Toxic Substances Control Act, Resources Conservation and Recovery Act, state and federal Superfund programs) puts it in an excellent position to have little to worry about a new layer of bureaucracy and restrictions.

The decision’s reliance on strong groundwater science marks another significant step in the emerging integration of groundwater and surface water. The California courts and legislature have long regarded surface water and groundwater as legally distinct, but over the last decade that legal fiction has begun to break down. In 2014, SGMA explicitly recognized the relationship between groundwater and surface water, requiring groundwater managers to avoid significant and unreasonable adverse impacts on beneficial uses of surface water. In 2018, a California appellate court ruled that the public doctrine applies to groundwater extraction if it adversely impacts a navigable waterway. This decision validates the hard work of water scientists working to protect critical freshwater systems in the context of integrated watershed and water resources management, including efforts to protect many of these freshwater resources that depend on high quality groundwater discharge. And it reminds us to keep hard at working to achieve the larger vision of the Clean Water Act.

Thomas Harter is a professor of Hydrologic Sciences and a Cooperative Extension Groundwater Specialist at the University of California, Davis.  He is currently acting director of the UC Davis Center for Watershed Sciences and Chair of the Hydrologic Sciences Graduate Group

Steph Tai is a professor of law at the University of Wisconsin Law School.  Their research focuses on areas of science, risk, and environmental and food regulation.

[Cross-posted from CaliforniaWaterBlog]

By Karrigan Börk, Andrew L. Rypel and Peter Moyle

Science-based decision making is key to improved conservation management and a legal mandate in the US Endangered Species Act.  Thus supporters of federal efforts to increase water exports from the Central Valley Project (CVP) and State Water Project (SWP) have claimed that these efforts are based on new science. Yet unpacking those claims requires some legal analysis, a basic understanding of science, and more than a little nuanced reading.

First, some background. For a review of federal efforts to increase Delta exports, and the recent biological opinions (BiOps) released by the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) approving those efforts, please see this earlier blog post. California has elected to sue the federal government over the recent BiOps, and, at the same time, California is proceeding with its own analysis of plans to change the operation of the SWP. Finally, the State Water Resources Control Board (SWRCB) is updating the state’s Bay Delta Plan, which addresses water quality and quantity in the Delta. The SWRCB has adopted a new plan for the San Joaquin River watershed, and is in the process of adopting a plan for the Sacramento River watershed. However, adoption and implementation efforts appear to be on hold while the Newsom Administration attempts to negotiate voluntary agreements with water users and environmental groups. The voluntary agreements might ultimately replace (or be integrated into) a comprehensive Bay Delta Plan update. There are many moving parts, but one thing tying all these efforts together is the proponents’ claim that their approach is mandated by the best science.

Supporters of the federal plan in particular seek to wrap the effort in the mantle of science. On the media call for the roll out of the new BiOps, Paul Souza, Regional Director for US Fish and Wildlife Service cited “tremendous new science now that we didn’t have a decade ago.” On the same call, Ernest Conant, Regional Director of the Mid-Pacific Region of the Bureau of Reclamation, argued that the new approach was “infused with new scientific information.” U.S. Rep. Kevin McCarthy, R-Bakersfield, told Fox News “this president has worked greatly using science, not based on politics but on science, to allow to have more of that water stay with the Californians and America.” Finally, during his remarks to Rural Stakeholders on California Water Accessibility in Bakersfield, CA, President Trump argued that the old plan was based on “old science, obsolete studies, and overbearing regulations that had not been updated in many, many years, and sometimes for decades,” promising that the new federal plans “use the latest science and most advanced technology.” The science drumbeat has played a central role in this media blitz.

The rationale for this approach is easy to understand. Policy makers frequently cloak political decisions in a scientific framework; in policy circles, this is known as the science charade (Adler 2017; Wagner 1995). The science charade lets political leaders avoid responsibility for unpopular decisions – they’re just following the science, not making hard decisions based on their own ethical considerations (Doremus 1997). The science charade also lets decision makers minimize public input on policy decisions – why should the uninformed public have a say in technical decisions (Adler 2017)? Scientists themselves sometimes embrace this approach because it affords them a measure of control over policy decisions (Adler 2017). The courts only reinforce the science charade – they are very reticent to overturn federal agency decisions that claim to be based on science, rather than policy preferences (Clark 2009).

This approach is not limited to supporters of the federal plans; everyone claims that science is on their side. But the current federal roll out is uniquely focused on claiming that new science justifies increased water exports from the Delta. Moreover, NMFS brought in new scientists to rewrite their draft BiOp last summer, after the first draft concluded the federal pumping plan was likely to drive species to extinction. This suggests some skepticism about NMFS’s claims to rely on “new science.”

Natural resource sciences are unique compared to many fields (e.g., physics). For example, the best natural resource science normally involves understanding not only the organisms of interest, but also the dynamics of their complicated ecosystems, which in turn are typically controlled by people. Indeed, most scientists are trained to view natural resource management quite broadly, e.g., as the intersection of organisms, habitat and people (Nielson 1999). Each aspect is critical and affects the other two, and managing with all three in mind presents opportunities for enhancing natural resources overall. However, management frequently goes awry when a disproportionate focus is placed on only one aspect of the problem (Sass et al. 2017). The science charade preys on the misconception that these spheres should be disconnected, suggesting we can somehow separate organisms and ecosystems from the decisions people make.

The US Endangered Species Act explicitly requires that federal decisions consider the best available science. For example, 16 U.S. Code § 1536(a)(2) requires that “each agency shall use the best scientific and commercial data available” when preparing biological opinions under the Act.  This is, objectively, the right approach. Bad science leads to bad decisions. But this mandate also encourages the cloaking of policy preferences as scientific mandates (Adler 2017). Consider three aspects of the current political struggle over Delta water.

First, the roll out for the new biological opinions treats existing science as old and obsolete, claiming it is no longer the best available science. But science is not milk. It doesn’t just go bad. New science can illuminate, and the state of the art sometimes changes over time, but older science is not inherently wrong or less valuable. Science grows by building on existing ideas and knowledge, not by rejecting it outright. As Isaac Newton famously wrote, “If I have seen a little further, it is by standing on the shoulders of giants.” For example, the 2010 report “Development of Flow Criteria for the Sacramento-San Joaquin Delta Ecosystem” found that flow standards aimed solely at protecting fish populations in the Delta would require 75% of the unimpaired flow in the Sacramento and San Joaquin watersheds. Certainly, other water needs mean that the Delta will not get these flows, but simply dismissing this report as old science is inherently flawed.

Second, to the extent that new science requires new approaches in the Delta, existing new science indicates that restoration of the Delta will require more water to be left in the Delta, not less. The 2017 Scientific Basis Report for the SWRCB Bay Delta Plan effort noted that additional flows into the Delta, and decreased exports of water from the Delta, always benefits native biota, provided that temperature, timing, and quality targets were met. Zero new science shows that native fishes and most other native organisms in the Delta can survive on less water.  Keep in mind that the Delta is one of the best studied estuarine ecosystems in the world, with continuous major research producing new and improved understanding of the ecosystem (i.e. science).

Third and finally, the new science claims in the biological opinions seem to focus on emerging approaches that might reconcile water use with ecosystem needs based on real time monitoring and habitat improvements. But immediate claims that this new science allows greater water exports from the Delta hides key policy decisions on acceptable extinction risks.

For example, the real time “Enhanced Delta Smelt Monitoring (EDSM)” program is supposed to allow managers to reduce pumping from the Delta when monitoring detects smelt in the area around the pumps, thus keeping smelt from being sucked into the pumps. But smelt populations are currently too low to detect, and a January 2018 independent scientific review concluded, “it is difficult to see how the EDSM currently can be used to inform water operations in near real time.” The review encouraged FWS to attempt to validate this approach, but the BiOps offer no such validation. Using this approach without showing that it works places all risk of failure on the Delta Smelt, and ultimately risks their extinction. This is a policy decision, not new science standing alone.

Similarly, the BiOps indicate habitat improvements will reduce the need for water in the Delta. As prior blog posts here have noted, better habitat improves salmon growth, which may improve salmon survivorship. Better habitat also may allow managers to reconcile human uses of the landscape with ecosystem needs. Could this approach allow managers to achieve ecosystem and species recovery targets with less water? It seems unlikely, but the BiOps depend on habitat improvement to make up for increased water exports. Even if this approach could work, it would require that suitable habitat improvements be in place before water exports increase. But most improvements mandated in the last round of BiOps are merely proposed, not complete, and most ongoing improvement projects remain unfinished and untested.

The increased pumping anticipated in the BiOps would begin well before any improvements in species numbers would result from habitat improvement. This approach assumes that additional unspecified habitat will compensate for decreased water in the short term. Success would depend entirely on protected species being lucky enough to persist under current conditions but with less water. Suggesting that the decisions expressed in the BiOps are based solely on science masks this central policy calculus, which is never explicitly revealed. However, the benefits of such an approach to Delta water users are well-documented: there is less political accountability, less public input, and more deferential court review.

What’s the solution? There’s no magic bullet to stop the science charade, but using properly vetted (i.e., peer-reviewed) science literature and independent science reviews of new rulemakings can go a long way toward ensuring true science-based policies. California’s Delta Science Program, for example, relies on an independent review panel to provide objective feedback to policymakers. Adaptive management approaches that would increase ecosystem protections if new approaches fail would better allocate risk in uncertain situations. The science community itself must also watch and safeguard how policy makers use its work. It is not enough to simply conduct and publish scientific articles – not anymore. And courts asked to review decisions that touch on science must distinguish between scientific conclusions and policy decisions that are cloaked as science.

In the near term, California agencies may soon face this challenge head on. First, as noted above, the California Department of Water Resources (DWR) is preparing an environmental analysis of its own plans to change the operation of the Delta pumps. DWR has proposed a plan that embraces some of the same approaches to science used by the federal plan. Comments from the California Department of Fish and Wildlife (CDFW) and the SWRCB to DWR have raised these concerns, but it is not yet clear how the DWR will respond and whether CDFW will ultimately grant DWR the permits it needs to proceed on the terms DWR has proposed.

Second, the SWRCB will have to approve any voluntary agreements that are developed for the Delta. The Newsom Administration is pushing hard for a suite of voluntary agreements to benefit the Delta ecosystem while also meeting water user needs. The benefits of successful voluntary agreements are tantalizing: an infusion of private funding, improved habitat, improved ecosystems, and continued availability of needed water, all done faster and with fewer lawsuits. But any agreements must ultimately comply with state environmental law, and the SWRCB will make the first determination as to whether the science supports whatever voluntary agreements the Administration can develop. The voluntary agreements appear to rely on the same habitat-for-water hopes that undergird the BiOps, and the agreements would lock in the water withdrawals before regulators know if the habitat improvements actually work. A safer approach would be to improve the habitat, and then conduct scientific studies to see if listed species actually benefit before withdrawing additional water. Failing that, the agreements should at least provide for water use reductions as a fail safe if species declines continue despite the new habitats. The best available science recognizes that nature is sometimes unpredictable and science is sometimes misread or just wrong. It requires contingency plans.

If the Administration succeeds in developing a set of voluntary agreements, and as DWR concludes its environmental analysis, look for the media blitz to emphasize that science supports their approach. It will fall to the state regulatory agencies to determine whether they are truly supported by science, or merely by a science charade. 

Further Reading

Jonathan H. Adler, The Science Charade in Species Conservation, 24 Sup. Ct. Econ. Rev. 109, 116 (2017).

Sara. A. Clark, Taking a Hard Look at Agency Science: Can the Courts Ever Succeed?, 36 Ecol.L.Q., 317 (2009).

Holly Doremus, Listing Decisions Under the Endangered Species Act: Why Better Science Isn’t Always Better Policy, 75 Wash. U. L.Q. 1029, 1038 (1997)

Carson Jeffres, Frolicking fat floodplain fish feeding furiously, June 2, 2011.

Peter Moyle, Jeff Opperman, Amber Manfree, Eric Larson, and Joan Florshiem, Floodplains in California’s Future, Sept. 10, 2017.

Peter Moyle, Karrigan Börk, John Durand, Tien-Chieh Hung, and Andrew Rypel, Futures for Delta Smelt, Dec. 15, 2019.

Larry A. Nielsen, History of Inland Fisheries Management in North America in Inland Fisheries Management, 2nd Ed. 3 (Christopher C. Kohler and Wayne A. Hubert eds., 1999).

Greg G. Sass, Andrew L. Rypel, and Joshua D. Stafford, Inland Fisheries Habitat Management: Lessons Learned from Wildlife Ecology and a Proposal For Change, 42 Fisheries 197 (2017).

Wendy Wagner, The Science Charade in Toxic Risk Regulation, 95 Colum. L. Rev. 1613 (1995).

[Cross-posted from California WaterBlog]

By Karrigan Bork

Co-authored with Peter Moyle, John Durand, Tien-Chieh Hung and Andrew Rypel

A recent biological opinion (BiOp) released by the U.S. Fish and Wildlife Service (FWS) concluded that a proposed  re-operation of California’s largest water projects will avoid driving the federally threatened Delta smelt to extinction. The plan proposes increasing water exports from the Central Valley Project and State Water Project, which will reduce water available for ecosystems and local uses. Both projects move water through pumps in the California Delta, a productive but sensitive ecosystem and home to the Delta smelt.

Under the federal Endangered Species Act (ESA), the FWS reviews federal agency actions to ensure that they will not drive listed species into extinction. In 2009, FWS reviewed the operation of the state and federal pumps that export water from the Delta and concluded in a BiOp that operation of the massive pumps jeopardizes the smelt’s continued existence. FWS required reduced pumping and other measures to protect the smelt, and those measure are currently in effect.

In 2019, the FWS again reviewed this new plan for the pump operations and concluded that many of the 2009 protections were actually not necessary and that the pumps could export significantly more water without jeopardizing the smelt. It draws this conclusion in two ways. First, the opinion notes that “recent abundance trends strongly suggest [the smelt] is in the midst of demographic collapse” and will likely go extinct without intervention. Based on this existing trajectory, the opinion concludes it won’t be the project’s fault when smelt disappear. Second, the opinion implies that, because agencies will spend $1.5 billion on habitat restoration, a production hatchery for smelt, and other measures, the net effect for the smelt will be positive. Based on these considerations, FWS concluded that the new operation plan would not drive the smelt to extinction, although it acknowledges extinction might happen anyway.

But the BiOp considers a very narrow question. The BiOp does not consider whether the plan is likely to improve the smelt’s status, and this BiOp in particular constrains its analysis so it does not meaningfully consider what is likely to happen to the Delta smelt under the new plans.

So, moving away from the narrow BiOp and considering the smelt in a broader context, what is going to happen to smelt in the wild? Is extinction likely?  This essay explores some issues affecting Delta smelt and suggests possible futures. This blog is a short version of a longer white paper (with references) available at: https://watershed.ucdavis.edu/shed/lund/papers/FuturesForDeltaSmeltDecember2019.pdf.

The basic problem

The estuary where Delta smelt evolved no longer exists, and smelt are poorly adapted for the new conditions. Much of the water that once flowed through the estuary is stored or diverted upstream or exported by the south Delta pumps (Hobbs et al. 2017; Moyle et al. 2016, 2018). The smelt’s historical marsh habitats are now artificial channels and levees protecting agricultural islands. These hydrologic and physical changes make the Delta prone to invasion by non-native organisms, some of which disrupt food webs and confound restoration. Lower flows allow salts, toxic chemicals, and nutrients to accumulate. Harmful algae blooms occur regularly. As climate change further disrupts flows and increases temperatures, little historical habitat is left for sensitive species like smelt.

A tipping point

Smelt populations have probably been in gradual decline since at least the 1950s (Figure 1), but their population has collapsed since the 1980s, tracking the increase in water exports (Figure 2). This correlation is compelling, but other major system changes took place in the same period.  In the late 1980s, an invasive clam spread through the Delta, removing much of the smelt’s planktonic food supply. Concurrently, invasive weeds spread across the Delta, transforming former Delta smelt habitats into clear, food limited, lake-like environments. From 1969-89, the Delta tipped away from good smelt habitat to a novel ecosystem unfavorable to smelt.  This shift is practically irreversible, and the shift put the Delta smelt on a trajectory toward extinction as a wild fish. It is currently largely absent from surveys that once tracked its abundance.

Figure 1. Indices of Delta Smelt abundance in the Delta’s two longest-running fish sampling programs, the Summer Townet Survey (for juvenile smelt) and the Fall Midwater Trawl Survey (mostly pre-spawning subadults). Figure by Dylan Stompe.

Figure 2. Annual water export (left axis) from the south Delta by the State Water Project (red) and federal Central Valley Project (blue) in million acre-feet. Gray bars show droughts, when pumping was reduced primarily because of low inflows. Annual inflows of water to the Delta in million acre-feet (right axis) are open circles. Data: www.water.ca.gov/dayflow. Figure: Moyle et al. 2018 https://afspubs.onlinelibrary.wiley.com/doi/full/10.1002/fsh.10014

Is habitat restoration the answer?

The BiOp relies in part on habitat restoration under California’s EcoRestore and other programs to support flagging smelt populations. There is little guarantee that this will make much difference to smelt, although many other native species will benefit.

First, the area under restoration is insufficient. Delta smelt originally inhabited an area about the size of Rhode Island, moving opportunistically to find appropriate conditions. Because Delta smelt are migratory and pelagic, smelt will overlap with restoration sites only occasionally. Successful habitat restoration would have to include multiple sites adjacent to water corridors, with abundant food and cool water, and in areas suitable for both spawning and rearing. Instead, the restoration approach has been more opportunistic than strategic, with restoration often focused on wetlands with willing sellers, regardless of suitability. We have little working knowledge whether we can build, connect, and manage these sites to benefit smelt.

Second, some projects rely on the idea that just creating tidal wetlands will be sufficient. It will not. Most Delta restoration sites are vulnerable to invasion by non-native species, which can subvert habitat solutions. Successful restoration sites require intensive, continuous management to meet even minimum expectations of restored habitat, and there is little incentive to actively manage “natural” restoration sites.

Third, current smelt populations are too small to be able to see an immediate (annual) response to habitat changes alone. Whatever steps are taken to protect smelt may be too little too late.

Finally, while water users hope that restoration provides an alternative to water use, this is not realistic. Successful restoration requires water flowing across the landscape. Moving water promotes the exchange of nutrients, controls introduced species, distributes food production, and creates habitat structure. Flows help restorations mimic natural environments and improves their effectiveness. Flows give managers better control of where Delta smelt end up during the spring, summer and fall. Habitat with minimal outflow is an empty promise.

If we are serious about providing the outflow required for habitat for smelt and other fishes, a substantial environmental water right is needed to provide reliable water to interact with physical habitat to produce food and shelter. Allocation of a sufficient water right is difficult to envision, given the current conflicts in the Delta, but California’s Bay Delta Plan, currently under development, generally proposes significant water for Delta fish, based on a percentage of the rivers’ natural flows. If this water were treated as a right under the control of an ecosystem manager, Delta smelt might have a chance of more than extinction avoidance—they might recover.

Hatchery Smelt

The BiOp also relies on hatchery supplementation of wild stocks to mitigate smelt impacts. The UC Davis Fish Conservation and Culture Laboratory (FCCL) has maintained a genetically managed Delta smelt population since 2008, but low wild smelt numbers complicate its operation. FWS allows FCCL to incorporate 100 wild Delta smelt into its population annually, to maintain genetic diversity, but recently the FCCL has been unable to capture 100 individuals. Without those fish, inbreeding might rapidly increase and add further uncertainty to the success of supplementation.  Other hatchery supplementation programs, such as those for salmon, have had limited success in re-establishing self-sustaining wild populations. The smelt efforts will likely follow suit (Lessard et al. 2018).

Conclusions

Based on our experience and research in the Delta, any benefits from the habitat restoration and hatchery plans in the new opinion are too uncertain to reliably offset negative impacts of increased water exports. The Delta has changed so much that suitable habitat for Delta smelt is increasingly lacking. Large-scale restoration projects that provide habitat and food for smelt will at times need increased outflows.  Desperate measures such as a production smelt hatchery and establishment of smelt in reservoirs may provide a veneer of ‘saving’ smelt for a while, but they seem unlikely to prevent extinction in the long run. In short, the smelt are likely to continue on their extinction trajectory. The following seem the most likely alternative futures for Delta smelt, in rough order of likelihood:

1. Extinction of the wild population in 1-5 years, with a population of increasingly domesticated hatchery smelt kept for display and research purposes.
2. Persistence of a small wild population in a few limited intensively managed habitats, until these habitats cease being livable from global warming and other changes.
3. Global extinction after wild populations disappear and hatchery supplementation or replacement fails.
4. Replacement of the wild population with one of hatchery origin, continuously supplemented.
5. Persistence of wild populations as the result of supplementation and through establishment of reservoir populations.

The authors are at the University of California – Davis, Center for Watershed Sciences.

Further reading

Hobbs, J.A, P.B. Moyle, N. Fangue and R. E. Connon. 2017. Is extinction inevitable for Delta Smelt and Longfin Smelt? An opinion and recommendations for recovery.  San Francisco Estuary and Watershed Science 15 (2):  San Francisco Estuary and Watershed Science 15(2). jmie_sfews_35759. Retrieved from: http://escholarship.org/uc/item/2k06n13x

Lessard J., B. Cavallo, P. Anders, T. Sommer, B. Schreier, D. Gille, A. Schreier, A. Finger, T.-C. Hung, J. Hobbs, B. May, A. Schultz, O. Burgess and R. Clarke (2018) Considerations for the use of captive-reared delta smelt for species recovery and research, San Francisco Estuary and Watershed Science 16(3), article 3.

Moyle, P. B., L. R. Brown, J.R. Durand, and J.A. Hobbs. 2016. Delta Smelt: life history and decline of a once-abundant species in the San Francisco Estuary. San Francisco Estuary and Watershed Science14(2) http://escholarship.org/uc/item/09k9f76s

Moyle, P.B., J. A. Hobbs, and J. R. Durand. 2018.  Delta smelt and the politics of water in California. Fisheries 43:42-51.

Moyle, P.B., K. Bork, J. Durand, T-C Hung, and A. Rypel. 2019. “Futures for Delta Smelt”. Center for Watershed Sciences white paper, University of California – Davis, 15 December, https://watershed.ucdavis.edu/shed/lund/papers/FuturesForDeltaSmeltDecember2019.pdf