In
California, water issues are of top concern. So, all eyes should be on
Washington now as the U.S. Supreme Court is poised to potentially take-up two
major cases that may affect water policies in the Central Valley for years to
come. The cases, Stewart Jasper Orchards
v. Jewell and State Water Contractors
v. Jewell, are about water rights for Californians and they tell a story of
environmental regulation gone wild.
As we know too well, ranchers and farmers are hurting under severe drought
conditions throughout California. These troubles are only exacerbated by the
federal government’s Endangered Species Act (ESA) regulations, which are
forcing additional water restrictions, in the Central Valley, for the benefit
of the Delta Smelt, a pinky sized fish that has no commercial value. These
restrictions prevent farmers and ranchers from receiving their full water
allocations—meaning precious rain water and snow-melt is passing into the San
Francisco Bay while agricultural communities are running dry. In fact early
this summer farmers in the Central Valley were forecast to get “zero allocation”
in order to protect the Delta Smelt. That projection was revised upward only after
we received a little more rain than was originally expected. But the farmers
still received far less water than they really needed.
Ever since U.S. Fish and Wildlife Services (FWS) began imposing mandatory water
restrictions, farmers have been forced to get by with less, or to rely more
heavily on their private wells. But, for some, those wells are beginning to run
dry. And, as the State moves to limit water that can be tapped from underground
reservoirs, things are looking grim.
Many have simply abandoned large sections of their farms—letting crops wither
and die—for lack of water. Some have reduced output. Others have simply given up.
All of this means fewer opportunities for agricultural workers, and hard times
for businesses reliant on agriculture—not to mention rising food costs
throughout the nation.
There can be
no doubt that these water restrictions have imposed serious hardships on
farmers, with major adverse economic impacts on the entire Central Valley
economy—if not the country. But the U.S. Fish and Wildlife Service says it has
no obligation to think about economic consequences. In their view, the only
“economic impact” they need to consider is the cost of enforcing the restrictions—never
mind the devastating impacts on California communities.
In the face
of a legal challenge, the U.S. Fish and Wildlife Service successfully argued that
its sole concern is over protecting the Delta Smelt “whatever the cost.” In
other words, it really doesn’t matter how destructive ESA restrictions might be
for the human environment—all that matters is that we’re saving this little
fish. But this is absurd.
Of course, we
aim to be good stewards of the earth by protecting our natural resources. But
ultimately environmental regulation should benefit people. It’s clear that Congress wanted a balanced approach to
environmental regulation when it enacted, and amended, the ESA to explicitly
require Fish and Wildlife Service to consider “economic impacts” of its
regulations. Before imposing draconian ESA restrictions, Fish and Wildlife
Service should have given serious consideration to the adverse impact water
restrictions would have on Central Valley farmers.
After years
of litigation, this issue may soon be coming to a head—and, incidentally, at a
time when drought conditions have raised the stakes for everyone. The National
Federation of Independent Business Small Business Legal Center is asking the
U.S. Supreme Court to review a Ninth Circuit Court of Appeal decision, which
held that Fish and Wildlife Service may impose restrictions without any
consideration of economic consequences. We are urging the high court to take
the case because it presents an issue of critical importance to the small
business community.
If it is
really true that Fish and Wildlife Service has no obligation to consider
economic impacts when imposing ESA restrictions, the federal government could
shut down the Port of Los Angeles or Oakland in the name of protecting a single
organism—without even considering the devastating impact that would have on the
national economy. It’s simply inconceivable that Congress would have intended
for the Fish and Wildlife Service to ignore devastating impacts on the human
environment because the ESA, like all federal environmental regimes, was
designed to strike a delicate balance between our societal needs and the needs
of the ecological system on which we all depend for continued sustenance.
