Does water bill override biops? Sure looks like it.

There was much talk Friday night on the floor of the U.S. Senate about whether the controversial California drought legislation now awaiting the president’s signature overrides the biological opinions that protect Delta fish or, by extension, the Endangered Species Act itself.

Depending on which senator was doing the talking, it definitely does or it definitely doesn’t.

I haven’t had the opportunity yet to speak with ESA experts on the very specific and technical language in the bill. But there is one provision that I think is fairly clear, saying that the secretary of the Interior:

In other words: During storms, the secretary would have authority to increase export pumping from the Delta above and beyond the maximum pumping level allowed under the ESA-mandated biological opinions, which in their current form are intended to prevent species from going extinct.

The feds wouldn’t always have this level of discretion. At other times, the bill simply allows the pumps to operate at the maximum level allowed under a specific range that is already outlined within the biological opinions (i.e., presumably, if the range allowed under the biops is -1,500 to -5,000 cubic feet per second, pumping would be allowed at -5,000 cfs).

See this other language, for example:

That’s very different than the first section I referenced, which, once again, allows the feds to pump at an unspecified level that exceeds the range spelled out in the biops. (If you want to read the California drought language in its entirety, it starts on page 584 of the bill.)

Remember, we are talking about biological opinions that were found by the National Academy of Sciences in 2010¬†to be “scientifically justified,”¬†though far from perfect.

(Incidentally, U.S. Sen. Dianne Feinstein, who helped broker the last week’s deal, asked the NAS to do its 2010 study after Delta exporters saw their water supplies slashed during the drought of the late 2000s, which was partially a result of the biological opinions.)

The legislation contains a caveat. Pumping can exceed those maximum levels only if it will not harm fish beyond what might be expected “for the duration” of the biological opinions. The significance of that language, I don’t know.

Bottom line: It appears the language referenced above does, in fact, override the biological opinions under certain circumstances. But if I’m missing something, please drop me a line and let me know. Learning as we go here.

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