Opinion: Feinstein plan will avert crisis
By: Daniel Nelson

Beginning in 1993, the federal government has imposed an ever-tightening series of restrictions on the pumping plants in the Delta operated by the Bureau of Reclamation and the California Department of Water Resources. They have done so in the belief that the decline of species in the Delta is a result of the operation of these pumping plants for the federal Central Valley Project and the California State Water Project.

To date those restrictions have cumulatively cost the two projects 70% of their capacity to deliver water to public agencies in the Bay area, the San Joaquin Valley, and southern California. And in the past two years, those restrictions have added about a third to the impact of the drought in California -- a burden that has fallen most heavily on the west side of the Valley.

But the federal policy that focuses exclusively on the pumps is wrong. Despite 17 years of applying the restrictions that were intended to benefit endangered fisheries in the Delta, their numbers are at the lowest levels on record.

Even the federal officials responsible for perpetuating this erroneous policy now acknowledge that there are numerous reasons for the decline of these species. But they have refused to do anything to control those other factors or even to assess the harm they are doing.

U.S. District Judge Oliver Wanger has said that these restrictions have had "catastrophic" consequences for the farms, businesses, cities, and counties that depend on these supplies. He has already determined that the federal agencies responsible for these restrictions did nothing to analyze the harm they would do to public health and safety, the human environment and other endangered species.

It was on that basis that Judge Wanger granted a temporary restraining order earlier this month. The principle the court applied was clear: The federal agencies should have considered alternatives that would still adequately protect the fish without cutting off so much of the water that California needs.

Sadly, that principle has been trumped by the federal government's invocation of the Endangered Species Act. The ESA does not provide the kind of balancing that the National Environmental Policy Act requires.

NEPA allows the public to see what kind of science is being applied to make up these rules. And NEPA demands that federal officials take a hard look at the alternatives, to see if there are better ways of protecting the fish without doing so much harm to everything else.

Judge Wanger was forced to void his original restraining order because, as he remarked from the bench, "Congress has tied the court's hands." In other words, without an act of Congress, there is little chance of relief.

That is why the legislation proposed by Sen. Dianne Feinstein is so important in providing temporary emergency water supplies for a region in crisis. It is not an exemption or waiver of the Endangered Species Act. Instead, it follows the example of previous legislation that successfully resolved a similar crisis in New Mexico by giving congressional direction, based on sound science, on how the listed species will be protected.

It ensures that pumping will be maintained at the upper end of the range that federal fishery agencies have already determined to be safe. And those provisions are supported by extensive scientific research by the state Department of Water Resources and numerous other public water agencies which indicate that further reductions in pumping below the level specified in the amendment will produce no benefits for the fish.

Sen. Feinstein's amendment would only remain in effect for two years, but it would put thousands of people back to work immediately. Its adoption has the potential to save more than one million acre-feet of water that would otherwise be lost forever.

For farmers within the Central Valley Project, who otherwise would get virtually no water this year, it would provide enough water to restore production on 288,000 acres of fresh fruits and vegetables.

Without this action, hundreds of thousands of acre-feet of freshwater supplies that California desperately needs to put into storage will be lost forever. Judge Wanger has pointed out that the harm the current restriction are doing is "irreparable."

The only way to correct that problem is through Congress and Sen. Feinstein is leading the way.