Nope it’s not the environmentalists, not the Delta interests either, and not even the fishermen. It is actually, some of the federally subsidized corporate water users on the west side of the San Joaquin Valley. 

Recently, Congressman Nunes (CA-21)  introduced an amendment to the House Congressional Resolution Funding Bill. This amendment would prevent the federal government from implementing the Biological Opinions under the federal Endangered Species Act (ESA). The Biological Opinions are needed to protect the Delta ecosystem, while still allowing reasonable amounts of water exports out of the Delta. 

What they have not thought through, is that the federal ESA would not be nullified by this exemption. Without the Biological Opinions there would be no “take” permits. Therefore, any pumping by the Central Valley Project (CVP) or the State Water Project (SWP) would be illegal. 

Next would be litigation under the California Endangered Species Act (CESA). Existing compliance with CESA for the SWP has been through a state issued “consistency determination.” Under that determination, the State found that SWP operations under the existing federal Biological Opinions meet the CESA standards. Without implementation of the federal Biological Opinions there would be no basis for consistency; which means, they would not be complying with CESA standards. 

Then there is the issue of federal CVP compliance with CESA. Existing law (California v. United States, 438 U.S. 645 [1978]) requires the CVP to be operated consistent with State requirements. CESA is a state requirement. Even some water users are publicly concerned whether the pumps would have to be shut down. 

So why would west side contractors and their Congressman take this risk? It may be that they did not think it all the way through, or they did not realize that they are potentially opening Pandora’s Box. What the west side water users do know, is that even if this amendment is not adopted, the proposed amendment will put greater pressure on federal agencies to drastically weaken the existing Biological Opinions when they are rewritten.  

Senator Feinstein got it right when she said California water issues “are complex problems, and they require nuanced solutions,” not sweeping changes in environmental laws that may or may not make sense.