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A Felix Smith White Paper

Tragedy of the Delta Commons

Felix E. Smith is a professional fish and wildlife biologist with 34+ years of experience with the U.S. Fish and Wildlife Service in supervisory and field positions.  He has over 50 years experience working on water management issues.  He was one of the biologists on the study team that found the first deformed American Coot at Kesterson National Wildlife Refuge.  He is a member of the Environmental Water Caucus of the Sacramento Area Water Forum and is on the Board of Directors of Save the American River Association.

by Felix Smith

September 3, 2009 -- California’s Sacramento-San Joaquin “Delta” is a valuable regional, statewide and national resource.  To many people the “Delta” is soil and water; is a vast ecological area; is habitat for fish and wildlife; is water quality; is a place of intensive agriculture; is navigation for small craft and for vessels of commerce; is a near wilderness and a place for solitude and renewing the spirit.  To others the “Delta” is a place to pump an endless supply of water for export to areas that have mined their groundwater to exhaustion and land subsidence; is a receptacle for endless amounts of agricultural drainage and wastewater laden with trace elements and chemicals.  
 
The “Tragedy of the Commons” described by Garrett Hardin has happened to our “Delta”.  Freedom to use the “Delta Commons” with little or no concern for the consequences on a limited resource and on the interests of others brings ruin to all.
 
Promises were made that Delta water quality and fish resources (Chinook salmon – all races, steelhead, and striped bass, etc.) would be protected if the CVP and SWP constructed.  The first failure occurred at Friant Dam on the San Joaquin River.  The San Joaquin River and its Chinook salmon were not protected.  It took lawsuits to straighten out the politically driven decision of 50 years ago.   Stewardship requires agencies managing or exporting water give more than lip service and promises to enforce Federal and State laws and the Public Trust Doctrine.
 
The California Supreme Court in its Audubon decision (National Audubon Society v. Department of Water and Power, City of Los Angeles, - 33 Cal 3d419, 658 P 2d 709, 189 Cal. Rpt. 346, cert. Denied 464 U.S. 977 – 1983, also called Mono Lake) was based heavily on the Public Trust Doctrine and extended protection to Mono Lake and its tributaries.  Audubon was a transformative decision regarding the public trust doctrine and the protection of water quality, aquatic habitats, and environmental amenities.  The Delta Decision (US v. State Water Resources Control Board, 227 Cal Rpt 161 – 1986), followed the Audubon findings and if enforced could put constraints on Delta exports; improve water quality and fish resources utilizing the Delta.  This case law, its findings and guidance to the State Water Resources Control Board has not been heeded in any aggressive manner.   Over 20 years after the 1986 decision, the National Marine Fisheries Service’s OCAP Biological Opinion of June 4, 2009, which also could put constraints on Delta exports and enforce water quality laws to help protect the Delta and its many Public Trust resources, uses and values. 
 
Some interests want more and more water pumped out of the “Delta” as if there is a limitless supply.  The CVP and SWP operators know about the past amounts of water pumped and the fish lost.  They know about toxic water in parts of the Sacramento and San Joaquin Rivers.  They know about the reverse flow and associated impacts.    The State Water Resources Control Board (State Board) also knew what was going on.  Collectively these agencies were either; 1) not impressed with the amount of pumping, reverse flow and poor water quality; 2) not impressed with the numbers and species of fish taken; 3) ignored the information; or 4) pursuing self-serving political interests.  These agencies seemed to be more concerned with pumping Delta water as fast as possible before the fish loss and flow reversal data became public knowledge.  The agencies appear more concerned with meeting politically vested interests and the desires of clients than for protecting the people's fish resources and water quality of the “Delta Commons”. 
 
Here in lies the tragedy.  Freedom to use the people's “Delta Commons” has gradually lain to ruin many of the people's fish resources and uses dependent on the Delta.   The CVP and SWP administrators desire to pump as much water as possible.  At the same time these agencies are not willing to protect Chinook salmon, Delta smelt and other fish resources that utilize these same waters.  The SWP and the CVP may have a right to divert “Delta” water, however that right is a limited right, a usufruct.  In this situation the water right holder has a moral responsibility to conserve and protect the interests of others, such fish resources, the viability of the aquatic ecosystem, water quality, etc, while diverting water.
 
In managing our rivers and streams, agencies are only wise when monitoring programs are in place, feed back is rapid and they have the ability and the political will to take the actions necessary to protect the people's interests covered by the public trust doctrine.
 
The public trust puts the cost and responsibility for protecting public resources on the user as a cost of doing business.  Thus CVP and SWP water users might just as well pay the bill today for protecting our public trust resources, rather than defer such costs to future generations because their environmental costs will be high enough without having to shoulder past costs as well.
 
Protecting public trust resources, uses and values of “Delta Commons” and inflow waters is a fundamental aspect of the public trust doctrine.  Continuous oversight and enforcement of State laws and regulations rests with the State Board and the Attorney General.   The State Board and the Attorney General, however appear to be powerless to act, or do not have the political will to act to protect the people's resources and interests.  The people must rely on lawsuits and the courts as the last hope for equity and resource protection under State and Federal laws and regulations and the public trust doctrine.