California Democrats Prepared to Challenge GOP Over Endangered Species Act

Last spring, well before a deluge of winter rain in California, then presidential candidate Donald Trump famously declared to an audience of Central Valley farmers that the state hadn’t really suffered from years of drought.

“Is there a drought?  No, we have plenty of water,” Trump said in Fresno, despite evidence to the contrary.  He then went on to say the real problem with state water supplies was habitat protection for a “three-inch fish.”

He was referring to the Delta smelt, a slim, silver-colored estuary dweller that’s threatened with extinction, partly because of the state’s massive water diversion projects. The fish is protected under the Endangered Species Act.

With Trump now in the White House and Congressional Republicans taking aim at the act’s costs and restrictions, an effort to roll back the landmark environmental law seems imminent.

House Republicans recently held a hearing to make the case that the act hamstrings needed development and hampers efforts to improve and repair dams, roadways, and bridges.

At the same time, California lawmakers have been working to strengthen state protections for endangered species should a federal rollback occur.

Sacramento efforts

California  Democrats are moving a bill through the Legislature that would require the state to have environmental laws that are equal to or tougher than regulations in the federal endangered species, clean air, and clean water acts. Those laws were signed by then-President Richard Nixon in the 1970s, ushering in a new era of environmental protections.

California’s bill also would apply to worker safety laws. It is called the California Environmental, Public Health, and Workers Defense Act of 2017.

Washington may curb environmental protections, but California will keep and strengthen its protections for air, water, endangered species and workers said state Sen. Henry Stern,  D-Los Angeles, speaking before the Senate Environmental Quality Committee on April 5.

“This is the least we can do to protect our state,” said Stern, who is co-authoring the legislation with Senate President Kevin de León, D-Los Angeles.

The committee voted 5-2 to move the bill forward. Its next stop is the state Senate’s Judiciary Committee.

It’s supported by most environmental groups, and is opposed by several business organizations, including the California Chamber of Commerce and the California Farm Bureau Federation.

Noelle G. Cremers, director of natural resources and commodities for the federation, said that the proposed law requires “no backsliding” of environmental protections but the phrase is so vague that it could result in a quagmire of lawsuits over different interpretations.

She contends that the Endangered Species Act is in need of reforms that would give farmers and other property owners incentives to protect wildlife. Now farmers have disincentives, she said. For example, if a farmer in western Riverside County let an endangered Stephens’ kangaroo rat re-establish burrows in a field, that land could never be farmed again and would be a loss to the farmer.

That’s why some farmers regularly disc their fields, even when it may not be a good time or even necessary to plant crops, she acknowledged.

Republicans take aim

Republicans in Congress took aim last month at a provision of the federal law that requires property owners to consult with the U.S. Fish and Wildlife Service or National Marine Fisheries Service before launching projects in endangered-species habitat areas that have ties to federal funding or programs.

These “Section 7 consultations” allow the wildlife agencies to shape projects to avoid or minimize harm to protected species living in project areas.

Rep. Raúl R. Labrador, R-Idaho, chairman of the subcommittee on oversight and investigations for the House Committee on Natural Resources, held a hearing March 28 to probe what he described as “sweeping impediments” caused by these consultations to public road, bridge, school, water and hydropower dam projects.

“Projects are stalled, federal agencies force costly surveys or studies, and often require questionable or unattainable mitigation measures, sometimes at a cost of millions of taxpayer dollars,” Labrador said.

One witness at the hearing was Jonathan Wood, a lawyer for the Pacific Legal Foundation, which has represented farmers, property owners, and developers in California endangered species cases. These included several legal fights in Southern California over the listings and habitat designations for the Stephens’ kangaroo rat, coastal California gnatcatcher, Peninsular bighorn sheep, and Quino checkerspot butterfly.

Oroville Dam emergency

Wood mentioned the emergency repairs needed for the severely damaged spillway at Oroville Damas a project jeopardized by the consultations.  Oroville is the tallest dam in California and sits on the Feather River above the habitat of protected populations of steelhead, chinook salmon, and green sturgeon in the Feather River.

“After the flood receded, California announced plans to repair and improve the aging dam. Immediately, federal bureaucrats raised the specter of consultation, threatening to slow the repairs down, increase their costs, or block them entirely,” Wood testified.

A footnote in Wood’s written testimony showed that the source of the purported Oroville problem was a letter to President Trump written by Rep. Doug LaMalfa, R-Richvale, who is a member of the House Committee on Natural Resources.

LaMalfa’s letter said that the consultation demanded by the National Marine Fisheries Service “is a striking display of how the Endangered Species Act and its implementation by unelected bureaucrats places listed species ahead of human life.”

Yet state water officials overseeing the dam repairs said the consultant requirement caused no problems.

“The Endangered Species Act has not delayed or curtailed either the emergency response or the recovery work at Oroville Dam since the dam’s main spillway began to erode on Feb 7,” Nancy Vogel, a spokeswoman for the California Natural Resources Agency, said in an email.

The agency is working with federal officials “to ensure that the critical work of repairing the spillway to protect Californians moves forward as expeditiously as possible, while at the same time protecting our vulnerable fish populations,” she said.

While “parties who may be pursuing changes to the Endangered Species Act are lodging these questions, the state is singularly focused on fixing the situation at Oroville,” her email said. “Our hope is everyone can put down other battles and help us get this job done.”

Contacted by telephone, Wood maintained that the law delays repairs to dams, roads and many other projects because it can take months or even years for consultations.

He is hoping that Labrador’s oversight hearing leads to a reform of the Endangered Species Act that limits reviews by federal wildlife officials. Many minor actions have to wait for months before consultations, such as when a farmer needs federal permits to change water flows in an irrigation ditch.

Federal wildlife officials should save their time for reviews of more significant projects, Wood said.

PROTECTING WILDLIFE

But Ileene Anderson,  a wildlife biologist with the Center for Biological Diversity, said that reviews are important because wildlife officials have expertise at keeping endangered species safe when building, digging or other projects need to occur in areas sensitive to the species.

“It is all about allowing development while protecting the species,” Anderson said.

Rather than allowing more actions in habitat areas without reviews, the wildlife agencies instead should be adequately staffed and funded to do the consultations in a more timely manner.

She’s concerned because Trump’s budget proposal for the coming fiscal year would trim $1.5 billion or 12 percent from the Interior Department’s budget, which includes the U.S. Fish and Wildlife Service.

For 44 years, the Endangered Species Act has been beneficial to Southern California by allowing development to occur while also saving space for many plants and animals that were here first, she said.

This allows for open space and a chance for the region’s natural areas to be enjoyed and appreciated for generations to come, she said.

President Donald Trump and congressional Republicans hope to roll back the Endangered Species Act. Here are some Southern California animals protected by the act.