In any scientific dispute spawned by the Endangered Species Act, the government almost always wins. Even if persuasive scientific evidence shows that federal environmental regulators are wrong or that they ignored all the facts that didn’t fit their preconceptions, the courts routinely defer to them.
But not always. In litigation that has been playing out in California for the last four years, regulators have been so incompetent and dishonest in the federal (mis)management of the state’s water supplies that the courts ruled against them. The U.S. District Court has found repeatedly that federal regulators failed to perform the most rudimentary analysis before ordering massive cuts in water that have reduced California’s supplies by more than a third during the last three years. “This is evidence of [Fish and Wildlife Service] intransigence,” the court ruled in the most recent of these cases at the end of August. “The agency’s ‘lack of data’ apologetic is the premise for the agency to do what it chooses.” (As the principal federal partner responsible for administering the Endangered Species Act (ESA), the Fish and Wildlife Service (FWS) has primary responsibility for recovering and conserving imperiled plant and animal species.)
In this instance, FWS was proposing to use 300,000 to 670,000 acre-feet of water to flush a handful of minnows called delta smelt a few miles farther west in the Sacramento-San Joaquin Delta. (The lower amount is enough water to meet all of San Francisco’s drinking water needs for nearly two years.)