Written by M. David Stirling

A federal court, to preserve an "endangered" fish called the Delta smelt, has ordered the shut-off of water passing through the Sacramento-San Joaquin River Delta to millions of people who rely on it for drinking, household, and business purposes, and for irrigating thousands of acres of prime farmland. This ruling looms large for the people of California and the entire country. For the past 36 years, hardcore "greens" have used the heavy hand of the 1973 federal Endangered Species Act (ESA) to elevate plant and wildlife species above the economic, social, and even physical needs and endeavors of people. Circumstances now emerging, especially this court ruling (and also including the greens' increased clout in Congress and the White House) may abruptly heighten public recognition of the biased, powerful ESA's heavy impact on the human species.

The ESA has been called "the most important environmental law in history," a view shared by virtually all environmentalist organizations and individuals who regard species preservation as the nation's highest public
policy obligation. In the first U.S. Supreme Court case testing the ESA's scope and authority (Tennessee Valley Authority v. Hill, 1978), the Court majority declared that by enacting the ESA Congress intended the preservation of listed species "whatever the cost." While it was curiously troubling for the Supreme Court to view a publicly funded program like the ESA as without cost constraints (every government program is limited by its price-tag or impact on people's lives), the lower federal courts have come to regard the ESA as a "super statute," enabling preservation of species to trump human endeavors in nearly all circumstances. Yet, despite 36-years of ESA implementation and enforcement, with more than 1350 plant and wildlife species listed for protection, millions of acres of land - much of it privately owned - set aside as species' habitat, and multi-billions of dollars spent or lost in the process, the vast majority of Americans, especially those living in urban population centers, know little, if anything, about the powerful statute.

While many relate to endearing images of charismatic species like the grizzly bear, the gray wolf-mom with her pups, and the bald eagle, few understand that the ESA also puts people's interests below those of a maggot like the Delhi sands flower-loving fly, a bug like the North Valley longhorn elderberry beetle, and a tiny fish like the Delta smelt. People living, doing business, and owning property in the nation's rural regions, however, have an entirely different view of the ESA. Residents of rural America view themselves as social and economic victims of an oppressive "species-first, people-last" statute that is enforced in a heavy-handed and economically harmful manner by federal bureaucrats and litigious environmentalist organizations. Many view the ESA as a tool for "rural cleansing," being used to drive rural residents off their land so it can be returned to nature.

An example of the ESA's heavy impact on rural residents occurred a few years back in the Klamath River Basin that straddles the California-Oregon border. There, farming has been a way of life for 100 years. During Teddy Roosevelt's presidency, the Klamath River Project was created to provide irrigation for agriculture, and flood control. It included construction of a network of nearly 700 miles of canals and ditches and 40 pumping stations to distribute water. Homesteaders were lured by the federal government to enter into contracts under which they would pay for, and the federal government would provide, irrigation water in perpetuity. For almost a century irrigation water was delivered without fail, and the passing generations of farmers not only paid for the water they used annually, but also repaid the government for constructing, operating, and maintaining the Klamath River Project's water delivery infrastructure.

In 2001, as the Klamath Basin underwent drought conditions, environmentalist organizations filed an ESA-based lawsuit to compel the shut-off of all contract irrigation water to the farmers to preserve the Lost River sucker fish, the shortnose sucker fish, and coho salmon. As their crops emerged from the soil in spring, the court, citing TVA v. Hill, ordered the government to abruptly shut off the water the farmers were expecting - the first time since the Klamath River Project began that the government did not live up to its contractual obligation. Without water, 1,400 farm families watched their crops wither and blow away, and with them their incomes, their seed money for the following year's planting, the value of their farms and land, and their ability to borrow from the banks. The results included numerous bankruptcies, two known suicides by distraught farmers, and many dashed dreams.

The water shut-off and its dire impact on the entire Klamath Basin community raised an intriguing question: How would urban residents react if a court, to protect fish living in their city's water supply, ruled that the ESA required each household be limited to a minimal number of gallons per day? This scenario had not occurred in an urban population center since the ESA became law, although it nearly did so in 2002.

At the time, with Albuquerque's 500,000 residents undergoing a sustained drought, several environmentalist groups sued the federal government and the city, claiming that the Rio Grande River's diminished flow was jeopardizing the survival of the ESA-protected silvery minnow. The court ordered federal authorities to tap Albuquerque's separate source of water - a source carefully planned and developed at great tax-payer expense
over several decades so that the city could deliver water to its growing population and businesses -- even though this would reduce, and if the drought continued, deplete, the city's water supply. Echoing the "whatever
the cost" language of T.V.A. v. Hill, the court stated: "In enacting the ESA, Congress required the federal courts to give greater protection to endangered species over human interests." The federal appellate court agreed, declaring that "the government's first duty is to the fish."

As the drought dragged on for several months, New Mexicans feared that the diminishing water supply would become critical, especially for Albuquerque's more vulnerable residents. The situation became so serious that the state's U.S. Senator, Pete Domenici, with support from the governor and members of Congress, secured legislation putting Albuquerque's water supply off limits to benefit the minnow. When rains came later that year, providing much needed water to both the silvery minnow and the people of Albuquerque, the highly charged debate over who should get the water -- people or fish -- subsided. But the very serious implications of the ESA granting the fish higher priority was not lost on the people of New Mexico.

After several months of vigorous public and media discussion on who should have priority to the water, the Albuquerque Journal commissioned a first-of-its-kind survey of New Mexicans' opinions of the ESA. It asked:
"Thinking of recent developments in New Mexico involving the Endangered Species Act, such as efforts to protect the Rio Grande silvery minnow, do you think the act goes too far, does not go far enough, or is working as it
should?" 69 % said the act goes too far, 15 % said it is working as it should, and 6 % said it does not go far enough. This result suggests that when Americans come to see how the ESA works and how it does or could impact
human lives, they overwhelmingly will agree that it goes too far.

The Delta smelt is a silver-colored fish about the size of an adult's little finger. Its natural weaknesses include a one-year life span and its meager reproduction of offspring due to its intolerance of any disturbance during the mating act. It also appears on course to cause unprecedented harm to California's already flagging economy and to two-thirds of its people.

For over 30 years, the federal Central Valley Project and California's State Water Project (the California Aqueduct) collectively have transported water through the Sacramento-San Joaquin River Delta to an increasing population living in the Bay Area, the Central Valley, and Southern California (as far south as San Diego.) These projects also furnish water to irrigate much of the state's farmland - acreage that produces over 200 crops of food and fiber, including half the nation's fruits and vegetables. These coordinated water projects operate large pumping stations at the south end of the Delta (near the community of Tracy) that propel the
water on its long journey.

In 1993 the already-declining Delta smelt population was listed as a threatened species under the ESA. The U.S. Fish & Wildlife Service's (FWS) lead expert observed that while the Delta smelt was one of the most common and abundant fish in the Delta during the early 1970s, "over the last 20 years" (1973 - 1993) its number had declined ten-fold, and since1982 had remained at extremely low levels. Besides its short life-span and meager
reproduction, other factors contributing to the Delta smelt's decline are the weak swimming capacity of young smelt, the degraded quality of Delta waters, the frequent and rapid changes in Delta water flow, entrainment of
young smelt by water diversions and the projects' pumping stations, predation by other fish, and a succession of invasive species that have consumed its food chain (especially the voracious Asian clam.).Years of work and funds expended by federal and state wildlife agencies have achieved little success in addressing the smelt's problem, or that of other native fish species. The Delta smelt's population has continued to decline.

A 2005 FWS Biological Opinion found many causes responsible for the smelt's decline, but that future water exports through the federal and state pumping stations, while likely taking a few smelt, were not jeopardizing the species' continued existence. That is: it wouldn't go extinct by reason of the pumps alone. With that, environmentalist groups brought suit in federal court challenging the Biological Opinion, charging that because the smelt's continuing decline since 2004 coincided with the pumping stations' increased water exports during the same years, the decline is attributable to the pumps. They asked the court to completely shut down the pumps.

Although the judge recognized that several factors were responsible for the smelt's decline, he agreed with the enviro-plaintiffs that the state and federal water projects were killing smelt in some uncertain number. Mindful of his duty under the ESA to preserve the Delta smelt "whatever the cost," in a series of rulings culminating in a landmark decision in December, 2007, U.S. District Judge Oliver Wanger ordered the pumps shut down during those months when young smelt are in the vicinity of the pumping stations and in jeopardy of being entrained. Troubled by FWS's conclusion that the pumps were not the primary cause of the smelt's decline, he ordered FWS to prepare a new Biological Opinion.

The court's ruling reduced Delta water deliveries during 2008 by 30 per cent to water contractors in the Bay Area, Central Valley, and Southern California.. According to the state Department of Fish & Game, this reduction has resulted in a hit to the state's economy of an estimated $300 million. The California Water Agencies' representative called it "the most drastic cut ever to California water. It's the biggest impact anywhere, nationwide." In December, 2008, FWS issued its new Biological Opinion -- this time attributing primary responsibility for the Delta smelt's decline to the federal and state water projects' pumping stations. While this opinion will be challenged by farmers, water agencies and communities more seriously hurt by it, if Northern California receives less than normal rainfall and snowpack, which appears likely at this writing, through-Delta water deliveries could be reduced by as much as 90 percent, according to the state's water resources department. Nor is the Delta smelt the only fish declining. In coming months additional water exportation restrictions under the ESA could be imposed for the longfin smelt, as well as salmon and steelhead.

The Sacramento Bee editorializes accurately that "[t]he Endangered Species Act is an unforgiving club when a species is about to vanish." Yet that approach fails to recognize the need to balance preservation of species against human considerations. On one hand the Delta smelt has been in decline for over 35 years and will likely become extinct from several causes no matter how much effort or funds are expended to protect and recover it. Aggressive invasive species -- to consider one cause alone - have greatly proliferated, and, as a practical matter, cannot be eliminated. On the other hand, a potential 90 percent reduction of water to 25 million people for drinking, household, and business purposes, for irrigation to California's $32 billion agricultural industry annually, including some 40,000 agricultural workers, could lead to unimaginable health, economic, and social consequences.

Thus, given the choice between the ESA's apparent demand for a draconian cut-off of water and a balanced approach to species protection, most people would agree: "the ESA goes too far."

Mr. Stirling is Vice President of Pacific Legal Foundation. He is author of the new book, Green Gone Wild - Elevating Nature Above Human Rights.