US EPA Needs to Protect San Francisco Bay

Bay-Delta Standards Need to Be Updated and Enforced - Now

For almost a year, The Bay Institute has been warning that California’s failure to enforce environmental safeguards under the Clean Water Act, Endangered Species Act, and other laws was putting numerous unique fish species of the San Francisco Bay-Delta Estuary on a “Countdown to Extinction.” With water-year 2015 behind us (the new water year began on October 1), we’re seeing the fallout from another year in which state and federal regulators waived protections for the Bay ecosystem. The results are bleak:
  • Toxic algae bloomed in much of the Delta throughout the summer – poisoning fish and wildlife as far downstream as San Francisco Bay.
  • The most recent survey indicates that zero longfin smelt have been caught in the estuary so far this fall – a staggering decline for one of this estuary’s most abundant forage fish.
After a summer when absolutely no Delta smelt were detected in some surveys, there is some “good news.” The fall survey caught a few of these endangered fish, confirming that this species is still with us, albeit at continuing record low numbers. Given their current numbers, it’s hard to believe that Delta smelt was once the most common species in the estuary.
There’s no question that many of the native fish and wildlife species unique to the San Francisco Bay-Delta Estuary are closer to extinction now than ever before. It’s also unsurprising that the existing water quality standards for the Bay-Delta that control freshwater flows into, through, and from the Sacramento-San Joaquin Delta to San Francisco Bay as mandated by the Clean Water Act, are inadequate to protect those species or the ecosystem that supports them and provides important services like water quality and flood management. Finally, there is no denying that the state of California is taking far too long to update these standards so they can actually protect these essential services and resources.
In fact, the state is not even enforcing the inadequate standards in place today. Instead, the State Water Resources Control Board approved a series of “Temporary Urgency Changes” in 2014 and 2015 that effectively eliminated protections for fish and wildlife species and habitat. The U.S. Environmental Protection Agency is supposed to review and approve such radical changes to water quality standards – but the state did not submit, nor did the EPA review, these waivers.
Enough is enough.
On October 29, 2015, The Bay Institute and other environmental groups sent a 60-day notice of intent to sue the U.S. Environmental Protection Agency for failing to take over California’s standard setting process. The Clean Water Act requires the state to review water quality standards every 3 years, and the US EPA to approve of any changes the state makes to the standards. However the last review was completed in 2006 (and the standards have not been substantively improved since 1995). There is an overwhelming body of scientific evidence to support the timely adoption of more protective standards. But, the State Water Board estimates that it won’t complete the review process until 2018 – nine years late. Furthermore, when water quality is not being protected but the state fails to act, the EPA must step in and issue its own standards instead.
In the middle of an ecosystem collapse that could result in a wave of species extinctions, destroy California’s commercially valuable fisheries, and degrade water quality for human use, both the State Water Board and the US EPA have failed to adopt new, more protective standards, and the EPA has failed to review or approve the “temporary urgency” changes to water quality standards issued by the state in 2014 and 2015. That left us no choice now other than to take the agencies to court to force them to do their job.
There’s a simple solution that could yet eliminate the need for litigation. The State Water Board needs to stop treating the water quality standards – and the deadlines to review and update them in order to respond to changing conditions – as mere guidelines that can be ignored when convenient. The EPA needs to step in if the state can’t meet its statutory and regulatory obligations promptly. We hope our threat of legal action helps clarify the urgent need to update and enforce standards that are strong enough to save and restore our precious Bay-Delta Estuary.