The Water Business: Big Pain, Little Gain

Why is water such a pain as a business?

This is the first in a series of posts about water.  I know something about the water business having spent my early career as a professional city manager.  Later I was Assistant City Manager for Utilities & Finance in Austin, Texas and one of my duties was managing Austin Water along with Austin Energy.  Even later, I was Assistant General Manager-Operations (COO) at East Bay Municipal Utilities District where I was baptized in the environmental fire of NEPA, CEQA, ESA and the FERC hydropower relicensing process.  But this post is not about those experiences, it is about life TODAY in the Great Central Valley of California where a Federal judge just turned the water pumps back on in the latest chapter in the long, heated and painful saga of ‘water wars’.

After driving the great Central Valley of California to near desperation with his order two years ago cutting water exports from Northern California to Southern California, Federal District court Judge Oliver Wanger said in a new order that the Federal agencies went too far in enforcing his previous order. He struck down the new rules affecting salmon that would severely limit pumping of water from northern California to Southern California through the end of May.  He also struck down a second rule that cut pumping by a lesser amount thru June 15th.  Since these now vacated rules were applicable only to this water year the water wars will start all over again for next year.  There is one more ruling expected covering the Delta Smelt that little shiny fish that causes so many environmental headaches.  The judge is expected to throw that rule out too since the biological opinion upon which it was based is very similar to the rules he invalidated.

Huh?

Judge Wanger issued a new 134 page decision in response to a lawsuit by state water contractors challenging the new rules saying the Feds failed to properly analyze the draconian impacts of their actions and—get this—regulators did not provide scientific justification for their limits on Delta pumping.  That “science” takes the form of a biological opinion which is used to guide all water operations and practices in order to protect the habitat of protected species.  Because these biological opinions are “judgments” they often are the most contentious part of the environmental review process.

“The exact restrictions imposed, which are inflicting material harm to humans and the human environment, are not supported by the record.  Rather, they are product of guesstimations and attempts to try to achieve ‘equity,’ rendering it impossible to determine whether the (Delta pumping restrictions) are adequately protective, too protective, or not protective enough.”

Balancing of Interests

What was new and different and potential VERY IMPORTANT is that Judge Wanger agreed with the state water contractors that the federal agencies failed to perform a cost benefit analysis to demonstrate that the environmental benefits of the rules imposed outweighed the economic harm they imposed.  This is blasphemy to environmental advocates.  In truth, the manifest weight of the case law in environmental lawsuits tell us that the Federal and State resource agencies had no duty to balance the interests of the parties.

What you ask?

Judge Wanger’s ruling said the federal agencies failed to comply with the National Environmental Policy Act to consider the impact a biological opinion would have on the human environment.  The Judge’s decision labeled the federal actions as “arbitrary, capricious, and scientifically unreasonable” in failing to consider the human impacts caused by the biological opinion, as a result.

Most environmental laws effectively put the burden of proof on the respondent in the case—that is the property owner or water user.  In environmental law you must generally prove that you are causing no harm (one of those when did you stop beating your spouse questions)  since the courts have given great deference to the professional judgment in these biological opinions.  This makes sense since judges are not biologists, but Judge Wanger understood that the direct harm being done to the Great Central Valley farmers was out of proportion to the good his ruling was doing for the fish.  Judge Wanger did what judges do—he balanced the equities.  But it has been rare that judges interpret the “human environment” in NEPA to mean that the Federal agencies have to give as much attention to the needs of people as they do the fish.

This action by Judge Wanger happened to be a pretty safe bet on his part since most of the fish he was trying to protect with his original rulings were now either safely out to sea or had been lunch for some predator on their way to sea.  To continue to impose these hardships on the Central Valley was unfair and unreasonable.

Good call.

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