An explanatory series focusing on one of the most complex issues facing California: water sharing. And at its core is the Sacramento-San Joaquin Bay Delta. Stay with kcet.org/baydelta for all the project's stories.
As California enters its fourth consecutive drought year, the Central Valley farm industry will likely take aim once again at the Delta smelt, a tiny four-inch fish on the Endangered Species list that may be wiped out if too much water is diverted from its habitat. The smelt gets picked on by ag interests because it's not very charismatic. It's the 21st Century California version of the snail darter: a fish too rare to eat and too small to catch for sport, whose survival is threatened by a multi-billion dollar industry. A seemingly useless smelt versus a people that grow food? The PR spins itself.
But there are other species threatened by our diverting water from the Sacramento Delta that don't lend themselves so well to pro-industry PR. There are the Sacramento's once-mighty runs of salmon, themselves the foundation of an important industry. There are prehistoric-looking sturgeons and steelhead beloved by anglers.
And there's one Endangered species threatened by Delta diversions so popular that the last time the ag industry took it on, the nation's animal lovers rose up in protest.
That beast? The orca, Orcinus orca, also known as the killer whale.
No, there aren't orcas living in the Sacramento Delta, though they have been known to visit from time to time. But the Delta is crucial to the survival of certain orcas' main food source, the Chinook salmon (Oncorhynchus tshawytscha). The more water we take out of the Delta, the more imperiled the Sacramento's Chinook salmon runs become -- and that's bad news for the orcas that depend on them.
Here's the basics. There are three kinds of killer whales that swim the Pacific off California, each different enough in behavior, diet, and appearance that it's likely they'll be separated into their own species before long.
"Transient" orcas, also called Biggs' killer whales, tend to roam in small groups and feed on marine mammals such as seals and sea lions.
"Offshore" orcas, discovered in 1988, tend to hang out several miles from the coast in groups of up to 200 individuals. Not much is known about their habits, but we do know that they eat schooling fish and sharks.
And then there are the orcas we do know a fair bit about: the Residents. Resident orcas in the northeastern Pacific are so-called because they spend much of the warm part of the year hanging out in well-defined home ranges in the Pacific Northwest. There are three main groups of Residents: the Alaskan, the Northern, which spend summers in Johnstone Strait near Vancouver Island, and the Southern, which spend summers in Puget Sound and off southern British Columbia.
The Southern Resident population of orcas is a single large family group of about 75 individuals, which mainly spend time split up into three "pods," denoted J, K, and L. The K and L pods are the ones that visit the coast of California, regularly traveling as far south as Monterey Bay. Hard-hit by the captive whale trade in the 20th century, the Southern Residents are listed as Endangered under the U.S. Endangered Species Act.
Unlike their cousins in the transient and offshore groups, Resident orcas eat mainly salmon. Chinook salmon, in fact. Of the 500 or so pounds of food an adult Resident orca can eat a day, about 70 percent -- 350 pounds or so -- is generally made up of Chinook salmon.
That means there's a problem for Southern Resident orcas off the coast of California. The state's formerly massive salmon runs in the Sacramento and San Joaquin rivers have been decimated by more than a century of diversions and dams. The fall and late-fall Chinook salmon runs in the Sacramento have been sustained by hatchery releases, but two other Chinook runs -- the Sacramento winter run and the Central Valley spring run -- have been so hurt by our reengineering of California's natural waterworks that they're listed as Endangered and Threatened, respectively, under the Endangered Species Act.
And that means that further drought, and further diversions of the water in the Sacramento and San Joaquin rivers, could seriously affect the Southern Resident orcas that visit California, depriving them of a once plentiful supply of Chinooks now mainly propped up by hatchery releases. And though threats to the Southern residents are plentiful from oil spills and pollution to collisions with ships, lack of availability of prey has been shown to be one of the biggest threats the orcas face.
That threat to Southern resident orcas hasn't gone unnoticed by the powers that be. In June 2009, the National Marine Fisheries Service published a document that described that threat, saying that continued operation of both the federal Central Valley Project and the State Water Project were "likely to jeopardize the continued existence" of a number of species protected under the Endangered Species Act.
Those species were the Sacramento winter-run chinook, the Central Valley spring chinook, the Central Valley steelhead, the southern population of green sturgeon, and the Southern Resident orcas. The Fisheries Service said that due to threats to those species, the Bureau of Reclamation and the California Department of Water Resources would need to change they way they pump water into their canals, taking less water overall, thus keeping more cold water in the Sacramento and its tributatries to keep the fish populations healthy.
The document, a formal Biological Opinion, or BiOp, on the effects the continued operation of both those water projects would have on those protected species, sparked a wave of legal wrangling. Irrigation districts and other water contractors fearing additional restrictions on their water supply filed suit charging that the BiOp was capricious in its finding that diversions would hurt the orcas and the four fish species. They mainly won that suit in District Court in 2011, but lost on appeal before the Ninth Circuit in September 2014.
Challenging the BiOp directly wasn't the only tack that farm interests and other big water users took to keep endangered species like the Southern Resident orcas from interfering with their water supply. If the Fisheries Service is obligated by the Endangered Species Act to order changes in water deliveries to protect listed species like the Southern Resident orcas, then why not just try to get the Southern Residents off the Endangered Species list?
In August 2012, the conservative Pacific Legal Foundation did just that, petitioning NMFS on behalf of two small agricultural clients to delist the Southern Resident orcas. Their clients, Empresas Del Bosque and Coburn Ranch, were diversified farms in Fresno County that grew a number of crops, including water-intensive almonds, most of which are exported to luxury markets overseas. They charged that the Fisheries Services's 2006 decision to list the Southern Residents as Endangered violated the law.
In what's got to be one of the best quotes ever to come out of the colorful rhetorical history of Central Valley water politics, Empresas Del Bosque president Joe Del Bosque told reporters as the suit was filed that "[i]t is almost outrageous that killer whales out in the ocean reduce our water."
"[F]ederal officials... invented a new category of Orca in the Pacific Northwest," said Damien Schiff, then of the Pacific Legal Foundation. "Then they declared it was 'endangered' and regulations must be imposed. In fact, however, there's no scientifically significant difference between the Orca in that region and anywhere else. There is no taxonomically significant distinction in genetics, biology, or behavior."
The groups contended that the Endangered Species Act allowed the government to list a species, a subspecies, or a Distinct Population Segment, or DPS, within a species as Endangered or Threatened. However, argued the plaintiffs, the Southern Residents were actually a Distinct Population Segment within a subspecies -- the Residents -- and thus ineligible for listing.
If that argument makes your eyes glaze over, you're not alone: it was a stretch in a couple of ways. Just looking at it logically, a subspecies is a subdivision of a species, and that means a DPS within a subspecies will always be a DPS within the species to which the subspecies belongs.
But the argument also ignored the facts of orca science. It's essentially just a matter of time before orcas are broken up into a number of sister species, and it's likely that Residents will become a species of their own, thus invalidating the plaintiffs' argument even if it had been logically sound.
In June 2013, the Fisheries Service rather predictably declined to delist the Southern residents in response to the petition, after receiving more than 2,200 formal comments on the petition. The agency reported that "a handful of comments supported the petition [to delist]," while the "vast majority" favored keeping the Southern Residents on the Endangered list.
Of course, it's highly unlikely that the plaintiffs actually had strong opinions about the taxonomy of killer whales: the argument was simply a way to try to remove the whales as an obstacle to water diversion Business As Usual. Which would explain attorney Schiff's insistence that there was no significant difference between orcas that have well-defined home ranges and family groups that eat mostly salmon, and other orcas who wander more without family groups, have a different dialct and markings, and hardly ever eat salmon at all.
The 2013 decision by the Fisheries Service to keep the Southern Residents on the list of Endangered Species was a break for the orcas, and a likely relief for the couple thousand members of the public who made comments supporting the whales. But to sprain a metaphor, neither the orcas or their salmon food source are out of the woods yet.
The Fisheries Service announced in late February that it will be proposing an expansion of the Southern Residents' critical habitat. Right now, 2,500 or so square miles of waters off the coast of Washington are designated critical habitat for the Southern Residents, which means federally backed projects in those waters have to account for their effects on the orcas. The service plans to expand that critical habitat southward to Point Reyes in Marin County, California.
That would definitely be a move in the orcas' favor, helping reduce the whales' chances of injury from oil spills and collisions. But with no end in sight to California's drought and mounting controversy over the effects of planned delta development on Sacramento River Chinook salmon, that expanded critical habitat might prove not much more than a bandaid.
The agricultural industry's move to delist the Southern Residents proved wildly unpopular among whale fanciers, as evidenced by the mass of comments submitted to Fisheries Service opposing delisting. It remains to be seen whether Central Valley farmers will take on such a charismatic species again, at least where the public can see them doing it. Given the choice between orcas and exported almonds, it's by no means certain that the public would side with the almond growers.
Fortunately, not all of California's business communities are steadfastly opposed to protecting Southern Resident orcas. As John McManus of the Golden Gate Salmon Association points out, the whales and the state's beleaguered salmon fishing industry both stand to benefit from ensuring enough water stays in the river to keep the Sacramento's Chinook salmon runs going.
"Both orcas and salmon fishing communities need the same clean water habitat," says McManus. "They both need the same salmon."