Pacific Swell | Southern California environment news and trends

A riddle: Can a fish turn off water pumps in California's Delta?

Brandon Middleton, a lawyer for the Pacific Legal Foundation, checked out my blog on Fiorina and water in the Central Valley, and like Fiorina did to me, offers corrections I may not need for an analysis of water policy in California he agrees "is not easy to understand."  But if you're so inclined, check out the concerns he raises about the Endangered Species Act generally - much of his post is pre-occupied with the arguments against ESA offered by groups like PLF in ongoing efforts to limit the ESA, undermine it, or eliminate it entirely - like Richard Pombo did for his whole career.

The Pacific Legal Foundation is in the process of challenging the regulation of Delta smelt on Constitutional grounds: making the argument that because the smelt's not sold in interstate commerce, Congress can't regulate it. [Updated 5:47 pm to correct missing words!]

Anyway, here's what he wrote:

First, Judge Wanger is not responsible for the delta smelt shutting off the water pumps.  True, a few years ago he did issue a decision invalidating several federal agency determinations about the smelt.  But that decision was issued in response to a lawsuit brought by environmental groups, and the severe consequences which resulted from the decision were really the result of the Endangered Species Act--a law passed by Congress, not a judge.

Mr. Middleton may be swimming upstream for this one. Here's the opinion in which Judge Wanger, on December 14, 2007, invalidated those determinations about smelt. That opinion set out guidelines for how the pumps had to be operated, or not operated, as the case may be. I think the guy who started in with CFS in a legal ruling gets a nod of responsibility for the decision - I may not be the only one. Tim Quinn, director of ACWA, told The Economist that "Judge Wanger forced all sides to acknowledge the seriousness of the situation. His decision was the “equivalent of an earthquake” whose shock was severe enough to shake California’s democracy."

...the legislative and executive branches of the United States government are ultimately to blame for taking water from humans and giving it to the delta smelt. 

Even if these guys are your villains, they've got names. So they're not the "nameless faceless bureaucrats" Carly Fiorina was referring to. I suspect her villains may not be the same as yours. Mr. Middleton's post reminds us that you can slice the question of who shut off the pumps a bunch of ways, to finger environmental groups, judges, overzealous lawmakers, compromised biologists, faceless bureaucrats, whatever. But bottom line, maybe we do agree on something - that the fish are the only people who definitely didn't shut off the pumps.

Fish don't have hands.