Federal Water Diversion for Agricultural Purposes: California’s Battle for their Threatened Natural Resources

By: Connor Hilbie

Since the late 1800’s and early 1900’s, the state of California has had to adapt to the state’s rising populations to ensure that the water supply could support its people.[i]  As a majority of California’s water supply originates in the northern reaches of the state, and while its swelling population and agricultural processes continued to grow in the south, the California state government, in conjunction with the federal government, needed to shape and adapt its water systems accordingly.  Thus, the State Water Project (SWP) and Central Valley Project (CVP) were designed, constructed, and implemented between the 1930s and 1970s, to combat the abovementioned issues.[ii]  The SWP, a California Department of Water-run system of dams, reservoirs, and irrigation systems, was constructed in the 1960s and 1970s,[iii] whereas the CVP is a federal system, run through massive pump houses, that was built in the 1930s and is currently run by the Bureau of Reclamation, with consultation services and biological opinions provided by the United States Fish and Wildlife Service (USFWS) and other applicable federal agencies.[iv]  However, while the design and implementation of these two incredibly expansive and intricate water systems may have been unavoidable to keep up with the state’s growing population and agricultural needs, many biological and ecological experts have argued that such invasive man-made processes as these have been a large contributor to mass fish population declines, especially impacting those species that are threatened or endangered.[v]  This issue regarding where to correctly draw the line between diverting enough water for agriculture/drinking water supply, and ensuring that native and endangered species are not excessively harmed in the process, is one of the main drivers behind the consultation requirements of the Endangered Species Act (ESA)[vi] and the Biological Opinions issued by the USFWS for the coordinated operations of the CVP.[vii]  This past fall, the USFWS issued an updated Biological Opinion, with recommendations and results of consultations for the re-initiation of the CVP.[viii]  Even more relevant however, is that the Bureau of Reclamation adopted this particular opinion this past week, in a Record of Decision that is already being contested by California’s state government.[ix]  Specifically in a complaint filed on February 20, 2020, California’s Attorney General, Xavier Becerra, brought suit on behalf of The California Natural Resources Agency (CNRA) and the California Environmental Protection Agency (CEPA) (among others), against Wilbur Ross (Secretary of the Department of Commerce), the USFWS, the National Marine Fisheries Service (NMFS), and the U.S. Bureau of Reclamation (among others)[x], alleging that the Biological Opinions adopted by the Bureau of Reclamation are “arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with the law,” and thus violated the Endangered Species Act and the Administrative Procedures Act.[xi]  Specifically, the complaint alleges that the particular species that are not adequately taken into consideration in the Biological Opinions and in the subsequent consultation are the delta smelt, Central Valley winter-run and spring-run chinook salmon, and the Central Valley steelhead.[xii]  As this case is barely a week old, it will be extremely interesting to watch and see how this litigation plays out, and it is just another example of the complex interaction between environmental interest groups, state government, and federal government that can only exist within the field of California’s water system.

Image from CA Times

[i] Cal. Dept. of Water Res., The California Water System, https://water.ca.gov/Water-Basics/The-California-Water-System (last visited Feb. 25, 2020).

[ii] Id.

[iii] Id.

[iv] Delta Stewardship Council, Long-Term Operations Biological Opinions for the Central Valley Project and State Water Project, https://deltacouncil.ca.gov/delta-science-program/lobo-central-valley-project-state-water-project (last visited Feb. 25, 2020).

[v] See, e.g., Paul Stanton Kibel, Sea Level Rise, Saltwater Intrusion and Endangered Fisheries – Shifting Baselines for the Bay Delta Conservation Plan, 48 Environs Envtl. L. & Pol’y J. 259, 264 (Fall 2014) (study of mortality of delta smelt determined that effects of CVP-SVP operation would likely have “significant adverse direct and indirect effects on delta smelt”).

[vi] 50 C.F.R. § 402.01(a) (2019).

[vii] U.S. Fish & Wildlife Serv., File No. 08FBTD00-2019-F-0164, Biological Opinion for the Reinitiation of Consultation on the Coordinated Operations of the Central Valley Project and State Water Project (Oct. 21, 2019).

[viii] Id.

[ix] U.S. Bureau of Reclamation, U.S. Dep’t of Interior, Record of Decision: Reinitiation of Consultation on the Coordinated Long-Term Modified Operations of the Central Valley Project and State Water Project (Feb. 2020).

[x] Complaint at 1, California ex rel. Becerra v. Ross, No. 20-cv-01299 (N.D. Cal. filed Feb. 20, 2020).

[xi] Id. at 3.

[xii] Id. at 8-9.

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