The western United States has long been dependent on damming and diverting water from rivers to irrigate farms and provide drinking water to cities.
Tucson, Phoenix, Denver, Los Angeles, San Francisco, and a host of other cities depend on an intricate network of water management systems.
Some of the most productive irrigation areas on earth such as the Central Valley and Imperial Valley of California depend on diverted water.
Tied to these storage and diversion projects and uses are a network of state water rights.
Though the water may originate on National Forest lands, Bureau of Land Management lands, and other federally managed lands, the rights to that water belongs to the farms and ranches and cities.
Millions of people and billions of dollars of our economy depend on being able to use these water rights for the purposes they were originally obtained for.
But the structure of water rights and the reliance on those rights by cities and farms and everyone else in the West is being challenged via the Endangered Species Act.
The water and the watersheds that the water originates from are being declared endangered species habitat and restrictions are being forced on the access and use to the water in the name of protecting endangered species.
In Arizona, for example, the right of Phoenix, the Salt River Project and the Central Arizona Water Conservation District to divert Colorado River and Salt River water to Phoenix and Tucson is being threatened by the US Fish and Wildlife Service because those diversion allegedly endanger everything from gila topminnow, chiricahua leopard frogs, willow flycatchers, etc.
The environmental mantra starts with the claim that 80 or 90% of Arizona riparian habitats have been lost due to water diversions.
Under the Endangered Species Act the federal government has a powerful tool to usurp state water rights in the name of protecting habitat for endangered species.
One prime example is the fight in central California over the Delta Smelt…a minnow like fish whose existence was alleged to be threatened by diversion of the water of the Sacramento River to farms in the Central Valley.
Water deliveries to the farms has been reduced to protect the smelt.
This is a back door way for the federal government to take away water rights granted by the states that have been in beneficial use for…in many cases…over 100 years.
The basis for taking away state-granted water rights is Section 9 of the Endangered Species Act…which basically provides that any modification of a habitat of an endangered species is a crime.
Thus diverting water a fish could live in is a criminal act.
This even though the water users…cities and farms…have had property rights to the water for many years.
One of the most interesting aspects of the Endangered Species Act and its implementation via US Fish and Wildlife (driven by hundreds of lawsuits from environmental litigation factories such as the Center for Biological Diversity) are the “incidental take permits” or ITPs that USF&W can issue allowing people to continue to divert their water provided they pay what amounts to extortion to USF&W.
Environmental litigation factories have joined the extortion game, offering to drop their lawsuits if they are paid money or some other ransom is delivered to them.
Here is one prime example relating to the Central Arizona Project:
There is a “biological opinion” on the CAP concludes that exotic fish might escape from the CAP canal system, swim upstream, and displace native fish species.
From the “biological opinion”
The waters conveyed by the CAP can connect both directly, via existing canals and reservoirs, or indirectly, via return flows, to the rivers of the Gila River basin. This connection opens potential conduits for the transfer of non-native species of fish to the lower Gila River basin tributaries and to the middle and upper Gila River basin above Ashurst-Hayden Dam. The Hassayampa, Agua Fria, Salt and Verde Rivers, as tributaries of the Gila, could also enable any fish species introduced into their waters from the CAP to reach the Gila River and eventually move upstream to the base of Ashurst-Hayden. Ashurst-Hayden Dam is not an effective fish barrier for several reasons, both structural and operational, and any fish species that reach the base of the dam would have the opportunity to move beyond it to the middle Gila and San Pedro Rivers. The presence of the CAP connection creates a perennial waterway from the Colorado River to the major streams of the Gila River Basin, potentially connecting rivers and canal systems that otherwise would be more isolated by dams and intermittent stream reaches
In the early 1990s The Phoenix Area Office of the Bureau of Reclamation entered into formal Section 7 consultation with the Fish and Wildlife Service (FWS) over the issue of transportation and delivery of Central Arizona Project water to the Gila River Basin(Hassayampa, Agua Fria, Salt, Verde, San Pedro, Santa Cruz, middle and upper Gila Rivers, and associated tributaries) in Arizona and New Mexico. Federal agencies must consult with FWS whenever it is determined that a project that is being built or funded by the agency may affect a species listed under the Endangered Species Act. In its Biological Opinion (April 20, 1994), FWS found that these deliveries would jeopardize the continued existence of the Spikedace (Meda fulgida), Loach Minnow (Tiaroga cobitis), Gila Topminnow (Poeciliopsis occidentalis), and Razorback Sucker (Xyrauchen texanus)and would adversely modify the critical habitat of the spikedace, loach minnow, and razorback sucker.
In order to remove jeopardy to these species the FWS proposed a reasonable and prudent alternative containing five primary elements:
- Construction and operation of upstream barriers to fish movement from the CAP aqueduct into native fish habitats
- Monitoring of nonnative fish
- Transfer of funding to FWS for the recovery and protection of listed and candidate Gila basin fishes as mitigation for adverse project effects which cannot feasibly be alleviated below the jeopardy threshold
- Transfer of funding to FWS for management against nonnaitve fish and research to support that management
- Implementation of an information and education program regarding nonnative aquatic fishes.
In a 2001 reconsultation with FWS, these reasonable and prudent alternatives were voluntarily made conservation measures (part of the CAP project) by Reclamation. More recently a 2008 resconsultation with FWS expanded the list of conservation measures to include the following:
- Reclamation will construct physical drop structures that act as barriers to upstream fish movement at 12 locations (see Fish BarrierPage for specifics). Reclamation or their designee will maintain the barriers throughout the life of the project.
- Reclamation or their designee will maintain and operate the existing electrical barriers on the Florence-Casa Grande Canal near China Wash and Salt River Project on the Arizona and South Canals throughout the life of the project.
- Reclamation will implement a baseline study and long-term monitoring of the presence and distribution of non-native fish in the following areas:
- CAP aqueducts
- SRP canals
- Florence-Casa Grande Canal
- Gila River between Coolidge Dam and Ashurst-Hayden Diversion Dam
- Salt River between Stewart Mountain Dam and Granite Reef Dam
- San Pedro River downstream of the US / Mexico border
- Cienega Creek Preserve
- Reclamation will transfer $275,000 annually for 21 years in addition to 9 years of funding that has already been provided to FWS for conservation actions(recovery and protection) for the spikedace, loach minnow, Gila topminnow, razorback sucker, or other Gila Basin listed or candidate fish species. Expenditure of these funds shall be jointly agreed upon by FWS and Reclamation in consultation with the Arizona Game and Fish Department and the New Mexico Department of Game and Fish.
- Reclamation shall transfer $275,000 annually for 21 years (in addition to 9 y
9 years of funding that has already been provided to FWS for conservation actions (recovery and protection) for the spikedace, loach minnow, Gila topminnow, razorback sucker, or other Gila Basin listed or candidate fish species. Expenditure of these funds shall be jointly agreed upon by FWS and Reclamation in consultation with the Arizona Game and Fish Department and the New Mexico Department of Game and Fish.
- Reclamation shall transfer $275,000 annually for 21 years (in addition to 9 years of funding that has already been provided) to FWS for research on, and control of non-native aquatic species. Expenditure of these funds shall be jointly agreed upon by the Service and Reclamation in consultation with the Arizona Game and Fish Department and the New Mexico Department of Game and Fish.
- Reclamation will develop and implement an information and education program directed to conservation of native fishes and their habitat. Emphasis is be placed on problems caused by bait-bucket transfer, dumping of pet aquarium fish, and other forms of transport by the public.
- Reclamation will provide $100,000 to FWS toward development of a Chiricauha leopard frog rearing facility, or other conservation actions.
Since the CAP fish escaping and displacing native endangered fish is a “taking” under the Endangered Species Act, the US Fish and Wildlife Service could in the extreme deny the CAP the right to deliver Colorado River water to Phoenix and Tucson.
Obviously understanding that completely shutting down the water supply to 5 million people might piss enough of them off to get the Endangered Specie Act repealed, US Fish and Wildlife made a deal with the CAP.
Pay US Fish and Wildlife ransom money every year so US Fish and Wildlife can run around the watersheds of the Gila and Salt and Santa Cruz rovers poisoning exotic fish and replacing them with endangered native fish.
$550,000 a year foir 21 years is being transferred from the CAP to US Fish and Wildlife for USF&W’s fish restoration program. And CAP is happy (one guesses) to pay the ransom from ratepayer (that means Phoenix and Tucson water users) money so the water flow is not shut off.
Pretty much the same situation exists between the Salt River Project and US Fish and Wildlife. The SRP owns the water rights on its watershed for delivery to farms and cities in the Salt River Valley. Even though the project was built in the early 1900’s long before there was en Endangered Species Act, now that water is being diverted, the ESA kicks in.
When, as a part of the CAP implementation, it was decided to rebuild Roosevelt Dam to increase the amount of Salt River water stored there, US Fish and Wildlife was right there waving Section 9 of the ESA in one hand, and demanding ransom from the SRP with their other hand. More money is transferred from SRP water ratepayers to US Fish and Wildlife.
Even something as mundane as building and operating sports fishing lakes in Arizona…such as Roosevelt Lake east of Phoenix, and Pena Blanca and Patagonia lakes in southern Arizona, trigger ESA violation and another opportunity for extortion.
Planting exotic fish in lakes like trout and bass threaten endangered species fish in those river systems…again the exotic fish swim up or down stream and displace the native fish.
In exchange for being able to continue stocking the lakes…and even having the lakes at all…means an incidental take permit is needed and to get that ITP the state Game and Fish Department has to pay.
The first thing that needs doing is for Congress to find out how much money US Fish and Wildlife actually controls via “inter-agency agreements” with other governmental agencies under ransom deals via the Endangered Species Act.
The second thing needed is Congress needs to make it clear that the Endangered Species Act cannot be used to reduce or interfere with pre-existing water rights under state law.
There are no water rights in the West if the Endangered Species Act is able to usurp state water law.
Reformation of the Endangered Species Act
More on the envionmental litigation factory war on America….
The Endangered Species Act series of articles:
Background info on Endangered Species Act:
News about litigious environment group activities:
Background info on Endangered Species Act: