Recently, Courthouse News Service reported on a case pending in the United States Court of Appeals for the Ninth Circuit involving dredging of portions of the San Francisco Estuary and impacts from those activities on fishes protected under state and federal Endangered Species Acts. The U.S. Army Corps of Engineers, faced with the never-ending challenge of keeping shipping corridors open to large vessels in the San Francisco Bay, the Delta, and lower Sacramento and the San Joaquin rivers, have an ongoing consultation with the National Marine Fisheries Service and U.S. Fish and Wildlife Service intended to minimize dredging impacts on longfin smelt, delta smelt, steelhead, and several Chinook salmon runs. The Corps operates under a Framework for Assessment of Potential Effects of Dredging on Sensitive Fish Species in San Francisco Bay (2004) and a series of enabling determinations and documents, including a Programmatic Essential Fish Habitat (EFH) Assessment for the Long-Term Management Strategy for the Placement of Dredged Material in the San Francisco Bay Region (2009), intended to minimize the effects of dredging on listed fishes and the ecosystems and resources that support them. 

Dredging of the San Francisco Estuary has occurred over many decades, creating and sustaining channels that are unnaturally deep to facilitate navigation. The actual act of dredging itself has the potential to result in significant harm to native fishes. The method of dredging preferred by the Corps to minimize costs is hydraulic dredging, whereby the agency uses equipment to suck up sediment and water; nearly all fishes sucked up (or entrained) with the sediment and water do not survive the experience. Prior analyses by the Corps, including a 2013 report by the Army Corps’ Engineers Research and Development Center in Vicksburg, Mississippi, indicate that this can lead to direct and significant mortality of the two smelt species. In addition, dredging alters channel geomorphology, reducing the extent and quality of the habitat and the amount of oxygen in the water column. Indeed, few actions undertaken by the Corps in meeting their mandates are as effective in directly taking protected aquatic species and at the same time destroying their habitats. Concern about these deleterious effects of dredging on the two smelts led the Bay Conservation and Development Commission to challenge the Corps decision to proceed with hydraulic dredging.

 

The dredging undertaken by the Army Corps of Engineers is widely recognized as one of myriad factors that have transformed the physical aspects of the estuary and its ecological communities, harming native fish species and altering their habitats. Less recognized is that the deleterious impacts on listed species from two different methods of dredging are different. The Bay and Delta case is noteworthy because the federal government weighed the benefits of an alternative to hydraulic dredging, mechanical dredging, which uses a large bucket or digger and would lessen the extent of harm to the two smelt populations, while significantly increasing costs as compared to hydraulic dredging. The Corps came to the conclusion that the benefits to listed species and their habitats do not justify the increased costs. The notion of weighing costs and benefits in order to identify optimal public policy has a long history dating back to John Stuart Mill and Adam Smith, among others. The renowned legal scholar (and former Director of the Office of Information and Regulatory Affairs), Cass Sunstein, made the case in his book, The Cost-Benefit Revolution, that in the past half century the United States has experienced a revolution, adopting the following de facto constitutional amendment — “no action may be taken unless the benefits justify the costs.”

 

At the same time that the Corps, in consultation with the federal wildlife agencies, have used a cost-benefit analysis in meeting their obligation to protect listed fishes from dredging activities, the federal and state governments are imposing costly, experimental measures to protect the same fishes on public water agencies — and the 25 million Californians they serve — absent cost-benefit analyses or any risk assessments at all. Irrespective of the legal merits of the federal government’s defense of its conduct in electing to save on costs by implementing hydraulic dredging at the expense of the two smelts and their habitats, from a policy perspective it is impossible to reconcile that determination with the failure to weigh the costs and benefits in the context of ongoing operations of California’s two largest water projects.

 

In regulating the Central Valley Project and the State Water Project, the federal government has disregarded costs and gone so far as imposing costly mitigation requirements that have uncertain benefits for the two smelts. The exemplar of this is the so-called summer-fall habitat action and its predecessor the Fall X2 action. Based on loose correlations between delta smelt and longfin smelt performance and outflow through the Delta, the management action requires the Bureau of Reclamation and Department of Water Resources to implement a combination of increased reservoir releases and water-export reductions in certain years to increase the volume of water flowing out of the estuary in the summer into autumn. The cost of the action runs into the hundreds of millions of dollars in each year that it is implemented. While some lines of analysis suggest that the action may benefit delta smelt, other more recent analyses countermand that suggestion and some even indicate that the outflow component of the summer-fall habitat action may do more harm than good for delta smelt, moving their planktonic foods from high quality up-Delta habitat to Suisun Bay where few delta smelt occur. Importantly, recent analyses falsify the hypothesis upon which the management action is based; that is, the assertion that outflow through the Delta – that is, the position of the low-salinity zone in the upper estuary – defines the location and extent of habitat for delta smelt and can serve as a valid proxy for delta smelt habitat. For these reasons and others, any reasonable cost-benefit analysis would lead to the conclusion that this management action should not be implemented.

 

Advocates for conservation at any price point to the Supreme Court’s 1978 decision in TVA v. Hill for the proposition that species protected by the Endangered Species Act should be afforded the highest of priorities no matter the cost. Policy that purposefully disregards consideration of the costs and benefits of government decisions defies common sense and sound public policy as Professor Sunstein persuasively argues.  But perhaps if such policy were consistently applied – as the rule of law requires – it could be defensible.  In the San Francisco Estuary, the policy of disregarding costs is not consistently applied as the federal government’s approach to dredging and water-export-project operations demonstrate.  This arbitrary outcome is contrary to the rule of law. No matter the outcome of the case in the Ninth Circuit, it is clear that consistent interpretation and application of the federal Endangered Species Act is necessary to establish sound public policy and adhere to the rule of law.

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