Informational Hearing Regarding Fully Protected Species Laws, the California 4.4 Plan, and Salton Sea Restoration

                  Testimony of Felicia Marcus on behalf of The Nature Conservancy

before the

Senate Natural Resources and Wildlife Committee

November 7, 2001

Madame Chair and Members of the Committee:

                         My name is Felicia Marcus and I am a consultant to The Nature Conservancy (TNC).  TNC is a non-profit membership organization with over 1,500,000 members nationwide, of whom nearly 500,000 are Californians.  TNC has devoted enormous efforts over the years to address California’s complex water issues and save its most valuable ecosystems.  I am keeping my comments general today as the Administration’s proposed solution to the complex issue facing this Committee has just come out in very draft form and discussions are ongoing.  As such, the following are general observations and thoughts about the nature of a successful solution to the problems being discussed today. 

            As the other speakers today have already demonstrated, the issues facing this committee rival virtually any other that could have come before you in scientific, historical, and political complexity.  It may be tempting, as it has been at moments for various of the stakeholders and agencies, to sweep aside inconvenient aspects of the problem to achieve a “solution.”  It is not unlike the children’s word puzzle in which interlocking letters in a small square holder must be moved around to spell real words with only one blank space to work with.  When hitting a frustrating moment in trying to solve the puzzle, it is tempting to take a screwdriver, break the puzzle, and pop all of the letters out and put them into an order that works.  This may be emotionally satisfying at first, but at least one part of the puzzle is broken forever and the player has never reached the level of achievement that is possible with patience, persistence, and a dash of creativity.  In the discussions about how to deal with the seeming conflict between the Fully Protected Species Act (FPSA), the Quantification Settlement Agreement implementing the California 4.4 Plan (QSA), and Salton Sea restoration efforts, after such “moments” of frustration, the stakeholders have stayed at the table to try to achieve a mutually beneficial solution without breaking anything.  We urge you to do the same, and to demand that all of us stay engaged in finding a constructive solution that does no violence to the aims of Salton Sea restoration, the efficient use of our state’s limited water resources, and protection and recovery of endangered species.  Our objective should be to have it all.

            As others have stated in more detail, the Salton Sea is a most unusual and precious resource, particularly for the thousands upon thousands of birds that spend some part of the year there.  Despite its “artificial” birth early in this century, and its roller coaster history of economic and biological health and decline, the Salton Sea does serve as a valuable resource for wildlife whose loss may be incalculable and is in no way inevitable.  Indeed, the habitat provided at the Salton Sea may well be essential to the survival of some species which have no other options at present.  Of particular importance today, the question of whether or not the sea is going to be restored, and if so how the sea is to be restored, cannot be answered because the environmental review process for the restoration project has been delayed.  Congressional decision-making must wait for that review process to be completed.  And, consequently, how any mitigation measures could most effectively fit in with that eventual effort must also wait. 

            The QSA between the federal government, the basin states, and California that allows California a reasonable and certain amount of time to come in line with its legal allocation of 4.4 million acre-feet per year of Colorado River water is also of historic importance on several fronts.  This agreement, which rivals the historic 1994 Bay-Delta Accord and ensuing 1999 Framework Agreement as an historic coming together of previously warring parties, is essential both to an intelligent and efficient water management framework for Southern California, and to the success of the Bay-Delta agreements.  Should the terms of the QSA not be met, the state risks an immediate and dramatic loss of water to Southern California, particularly urban Southern California.  This would inevitably have locally undesirable impacts.  It would also put far greater pressure on Southern California urban users to draw on their full allocation of scarce Bay-Delta supplies, exacerbating both ecosystem and water quality problems.  In addition to avoiding the negative impacts of failing to meet the QSA, the water transfer has merits of its own.  The successful implementation of a large scale water transfer, such as the Imperial-San Diego transfer that is implicated here, is an important step forward in California’s quest to more efficiently use its scarce water resources to meet agricultural, urban, and ecosystem needs.

            So, the Salton Sea is an important resource and the transfer and QSA are important too.  Unfortunately, as Tom Kirk has pointed out this afternoon, the Imperial-San Diego transfer will have a significant negative impact on efforts to restore the Salton Sea.  The level of this impact depends heavily on the method chosen by the Imperial Irrigation District to implement the transfer.  For example, should fallowing be chosen the impacts will be less severe on the Salton Sea than the “pump-back” method which recirculates water that runs across the field while allowing heavily salted underground drainage water to flow into the sea.  It is possible that the method will be chosen that will have the less severe impact on the Salton Sea’s ability to maintain the fishery upon which the birds depend.  It is more likely at present that a method will be chosen that will significantly hurry the Salton Sea’s demise in a timeframe (seven to nine years) that may make it significantly harder to save.  These are the very years in which it will be necessary to implement some very complex and expensive restoration attempts or find alternate avenues to save imperiled species.  Either way, the transfer will have an impact on the Salton Sea.    So, it is essential that we look for ways to fully mitigate the transfer’s impact in its own right and find a way to match the mitigation with the level of impact that the method of transfer causes.  And, given the immense challenge of restoring the sea, it would be most effective if the mitigation could be part of the overall restoration plan.

            All of this would be complex enough were it not for two additional challenges.  First, meeting the time schedules for various actions called out in the QSA, including the transfer, requires answers far earlier than the restoration planning process can accommodate because of delays that have occurred in federal actions necessary to bring that process to conclusion.  Those QSA schedules were agreed to assuming that the timeframes specified in the federal legislation that created the Salton Sea restoration planning process would be met.  Second, state endangered species protections under the California Endangered Species Act (CESA) require a more specific plan for mitigation than will be possible by the time the permit for the transfer must proceed to be on time and for California is to be in compliance with the QSA.  Moreover, the FPSA that is the subject of this hearing today does not allow any take of a listed species, some of which will likely be taken during the course of the transfer and QSA implementation.  At the same time, there is also a great deal of legitimate fear on the part of the environmental community that the existing endangered species laws are not protective enough as they now stand.  As a result, any weakening of those laws is extremely difficult to countenance.  So, we find ourselves at a multilevel impasse.  We have two important efforts colliding, and we lack the tools to bridge the gap between them in any constructive way.

            With respect to the FPSA issue, TNC has participated in the multi-stakeholder processes convened by the Administration and Legislature to date to review that statute as a whole and TNC will continue to do so.  Similarly, TNC has actively participated in the legislative processes to improve the Natural Communities Conservation Plan (NCCP) planning process to guarantee better species protection and recovery and will continue to do so.  The differences between the two approaches to endangered species protection embodied in the FPSA and NCCP illustrate one possible approach to resolving the impasse here.  In the FPSA, which predates both the CESA and the NCCP program, a list of species has been given a greater level of protection than other species.  The tool is a simple ban on take.  Although very clear and very strong, it has no provision for actually ensuring or contributing to recovery of the listed species.  In the NCCP, although the provisions should be strengthened--as we expect they will be when the Senate passes SB 107 in January--the objective is a plan and actions to actually help the involved species recover from their diminished state.  What we need to solve the problem before us are more flexible tools to work with, but with no less protection for the species.

One possibility, suggested in part by the Administration’s draft legislation, is to replace the absolute “no take” provision of the FPSA with one that requires a very high level of recovery plan and associated actions that would ensure implementation efforts likely to lead to an actual increase in the health of the listed species.  Although the devil is in the details, such an approach would honor the legislative intent of the FPSA that some species be accorded a higher level of protection.  In the particular case at hand, it could allow the water districts and the state to come up with a plan, including a funding plan, that would give the environmental community comfort that something good for the listed species could come from the transfer--instead of heading for a train wreck of competing interests that could endanger the QSA but provide no benefit for the species endangered at the Salton Sea.  Another option currently being proposed by some in the environmental community would make changes in FPSA dependent upon substantially strengthening the provisions of the California Endangered Species Act (CESA).  This also warrants further exploration and discussion and could also form the basis of a solution coupled with some real promise of mitigation at the Salton Sea.

Some principles to bear in mind when crafting any solution include:

1.      There must be significant mitigation for impacts on the Salton Sea caused by the transfer, and this mitigation should be coordinated and consistent with long-term restoration efforts.

2.      The level of mitigation must be commensurate with the level of impact caused by the method chosen to implement the transfer.

3.      Even if the actual mitigation method cannot be ascertained by the state until the federal government completes its deliberations on Salton Sea restoration options, some fund should be established and paid into concurrent with or prior to the actions to be mitigated.  Contributions could be a mix of water user, federal, and state funds.  Some assurance should be devised that the mitigation will actually be implemented.

4.      Should restoration of the Salton Sea not be pursued, mitigation funds should be used to achieve the most effective mitigation measures that can prolong the resources upon which the endangered species most rely (e.g., riparian and wetland recovery proximate to the sea).

5.      For any change to the FPSA there must be something of substantial value to the listed species in exchange for alteration of the strict language currently in effect, whether that be through changes to FPSA or changes to CESA.

6.      If possible, any solution should be crafted to give all parties an incentive to work toward an affirmative federal decision on restoration of the Salton Sea as quickly as possible.

7.      Extensive stakeholder engagement must be maintained in any solution-seeking or implementation process.

 These issues are obviously very challenging, but the competing actions at stake here are all of tremendous importance to California’s environmental and economic future.  We look forward to working with you to find the best possible solutions to all of these challenges.

For More Testimony