Selenium toxicity in fish and wildlife and Bay Delta Estuary

by Felix Smith (undated early 2001)

(biologist retired from the Fish and Wildlife Service, who had the courage several years ago to be the whistle blower on Kesterson)

The USGS report (Report) "Forecasting Selenium Discharges to the San Francisco Bay-Delta Estuary: Ecological Effects of a Proposed San Luis Drain Extension" was released the middle of December 2000. It is data intensive. The authors are Drs. Samuel N. Luoma and Theresa S. Presser. They have outstanding scientific credibility.

From the evidence in the Report, it is time for the environmental community to rethink and clarify its position regarding Se in the SJV, the San Joaquin River and the Bay-Delta Estuary. I believe that it is time to rethink a lawsuit regarding the waste and unreasonable use, nuisance, and failure to protect the public trust associated with the use of Federal water to irrigate saline/seleniferous soils of the Westside of the SJV.

Understanding selenium transfer

Understanding the biotransfer of Selenium (Se), is essential for evaluating the fate and impact of proposed changes in Se discharge to the Bay-Delta. Confusion about Se threats in the past has stemmed from failing to consider the full complexity of the processes that result in Se toxicity in components of the environment. What is clear is that in the management of fish and wildlife, it is the predators that are more at risk from selenium contamination rather than their prey. Environmental concentrations of Se, its speciation, its transformation to particulate form, its bioaccumulation by invertebrates, its transfer to predators via the food chain, and the effects on those predators are all part of understanding the overall impacts of Se.

The people know what happened to waterfowl and shore birds at Kesterson NWR. Se accumulated via the food chain to high levels in their tissues, resulting in dead adults and dead and deformed young. The Report indicates that in the Bay-Delta, surf scoter, greater and lesser scaup and white sturgeon appear to be the most at risk to Se toxicity because they feed on filter feeders. Recent findings add splittail to the list. The Report indicates that the reservoir of Se in the San Joaquin Valley (SJV) is sufficient to provide loading at an annual rate of approximately 42,500 pounds of Se to the Bay-Delta disposal point for 63 to 304 years at the lower range of its projection. And this is with the influx of Se from the Coast Range curtailed. Disposal of wastewater on an annual basis outside of the SJV may slow the degradation of valley resources, but drainage alone cannot alleviate the salt and Se buildup in the SJV, at least within a century. It should be noted that there were other projections extending the loading range from 45,000 to 128,000 pounds of Se per year.

Se contamination from 1986 to 1996 was sufficient to cause deformities and threaten reproduction in key species within the area of the greater Grasslands, downstream via the San Joaquin River to the Bay-Delta estuary, and also resulted in human health advisories. Human health advisories against consuming Se contaminated edible tissues of fish (bluegill and largemouth bass) and for migratory birds (ducks and coots). Se concentrations found in 62 white sturgeon muscle samples and 42 liver samples far exceed tissue thresholds for reproductive effects. The Report indicates that Se discharges during low flow seasons will have a high likelihood of causing losses to fish and wildlife via the food chain. There also will be Se build-up in edible tissues (people food) and in the reproductive systems. There would be impacts to fish and wildlife that feed on such tissues.

Filter feeders are great concentrators of Se. Aquatic insects were the primary food item of shore birds. The Report concludes that bivalves appear to be the most sensitive indicator of Se contamination in the Bay-Delta. Tidal action will increase the resident time of Se, exposing all aquatic organisms and increasing the ability of food organisms to accumulate greater amounts of Se and pass it up the food chain to predators.

The current USEPA national Se criterion to protect aquatic life is 5 ug Se/L (5 ppb). The USFWS recommended criterion is 2 ug Se/L (2 ppb) based on case studies. The Canadian criterion for the protection of wildlife is 1 ug/l (1 ppb). Based on the evidence presented in the report, neither EPA's nor FWS's Se criteria would be sufficient to protect aquatic resources of the Bay-Delta estuary. Today we have the potential of having the longest Se contaminated hazardous waste site know to man, from the Grasslands (near Los Banos), downstream via the San Joaquin River to the Delta and then into Suisun Bay and adjacent marshes.

Background for Action

One can quickly see that Se can become a water quality issue / problem damaging or destroying beneficial uses. In aquatic ecosystems, a water quality problem exists when there is a failure to provide water of sufficient quantity or quality to protect or enhance an ecosystem, its resources, beneficial uses and values.

Protecting the continued sustainability of an ecosystem so that people can benefit from its common heritage resources, their uses and ecological values is a moral obligation supported by case law and the principles of the public trust doctrine. This meaning has been supported by court decisions since at least 1884.

Let's put this into perspective. The legality of disposing wastes and other debris (including wastewater) into waters and waterways was clarified by case law well over 100 years ago. For years gold mining companies disposed of their wastes and debris into several Central Valley rivers and streams, that in turn were deposited by floods on agricultural land, wrecked towns, made water unfit for domestic uses and threatened navigation. The people complained, however, individual lawsuits seeking relief were not very effective against the Miners Association. In 1878 the Anti-Debris Society was formed to combat the Hydraulic Miners Association. The Society quickly discovered that California courts were too corrupt to provide relief. So in 1882, the Society teamed up with an absentee landowner, Mr. Woodruff to bring suit against North Bloomfield Gravel Mining Company in Federal court. (Woodruff v. North Bloomfield Gravel Mining Co. (Fed. Rpt. Vol. 12 -1884).

The North Bloomfield case involved the waters of the Yuba, Feather and Sacramento Rivers, the Delta and San Francisco Bay. This mining debris was making Yuba River water unfit for household and irrigation uses. The debris covered agricultural lands along the lower Feather River, and impacted navigation by reducing the navigability of the Sacramento River and Delta. Other beneficial uses were also impacted.

The case was supported by reports and finding of the Corps of Engineers. Some of the evidence was that about 310,000 acres of farmland had be ruined or severely damaged and towns wrecked by floods carrying mining debris, and miles of navigation channels lost draft as the debris filled in the channels (Gray Brechin-1999, Imperial San Francisco - U.C Press). It was estimated that about 53,000,000 cubic yards of mining debris per year But a legitimate private business, founded upon a local custom, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and when it develops into that condition, the custom upon which it is founded becomes unreasonable, because dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those who are engaged in it to so conduct it as that it shall not violate the rights that belong to others.

Accompanying the ownership of every species of property is a corresponding duty to so use it as that it shall not abuse the rights of other recognized owners. Upon that underlying principle, neither the state or Federal legislature could, by silent acquiescence, or by attempt legislation, ... divest the people of the State of their right in the navigable waters of the State for the use of a private business, however extensive or long continued (Cal Rpt. at 1158-1159). The Gold Run Court restated that public trust rights held by the people are paramount and controlling over the dumping of wastewater and other debris into the State's waters and waterways. In essence the Gold Run Court stated that the mining companies did not gain through custom, any right to dump their waste hydraulic fluids, sediment and oe were impacting the waters of the American River, the Sacramento River, the Delta and San Francisco Bay.

The State of California stated that landowners or companies do not gain a right through custom or common practice to continue dumping their wastewater and debris into streams and waterways of the State. The State asserted that hydraulic mining debris dumped or placed on the banks of non-navigable streams was being washed into the downstream waterways impacting beneficial uses of water and destroying navigation. The State alleged that the pollution and filling of waterways caused by the mining debris and other wastes could be enjoined. The State also asserted that the public trust rights held by the people in navigable waters (it could easily include commerce, fisheries, water quality and a multitude of other uses) are paramount and controlling over allowing mining debris and other wastes to be dumped or allowed to pass into waters of the State. The decision of the Gold Run Court was issued November 25, 1884, 10 months after the Sawyer decision. The Gold Run Court indicated that the material being dumped into state waters constituted a nuisance that could be enjoined. The Court noted that there were large amounts of capital investments in the hydraulic mining business. But it stated:

But a legitimate private business, founded upon a local custom, may grow into a force to threaten the safety of the people, and destruction to public and private rights; and when it develops into that condition, the custom upon which it is founded becomes unreasonable, because dangerous to public and private rights, and cannot be invoked to justify the continuance of the business in an unlawful manner. Every business has its laws, and these require of those who are engaged in it to so conduct it as that it shall not violate the rights that belong to others. Accompanying the ownership of every species of property is a corresponding duty to so use it as that it shall not abuse the rights of other recognized owners. Upon that underlying principle, neither the state or Federal legislature could, by silent acquiescence, or by attempt legislation, ... divest the people of the State of their right in the navigable waters of the State for the use of a private business, however extensive or long continued (Cal Rpt. at 1158-1159).

The Gold Run Court restated that public trust rights held by the people are paramount and controlling over the dumping of wastewater and other debris into the State's waters and waterways. In essence the Gold Run Court stated that the mining companies did not gain through custom, any right to dump their waste hydraulic fluids, sediment and other debris into State waterways. The disposal of mining debris was found to be a public nuisance, an invasion of public rights, and therefore unlawful. The act of disposing of mining debris could be enjoined. The ruling was against the entire hydraulic mining industry. Each company could continue to mine, but could not dump or allow their wastewater and other debris to enter the waters and waterways of the state. After years of bulling by the mining interests to get their way, it took the Courts to say No to the mining companies that they could not continue their damaging activities.

In 1895, a similar case, People ex rel Ricks Water Co. v. Elk River Mill and Lumber Co. (40 Pac. Rpt. 486 -1895), came before the California Supreme Court. The owner of a lumber mill and ranch enterprise for years allowed filth from cows, hogs, stables, other debris and fetid matter to enter and contaminate Elk River which was a water supply for people and other interests downstream. Clearly this was not a wholesome setting. The Court found the pollution a nuisance and an unreasonable use of the waters of the stream. The Court reasoned that the acts are equivalent to actually putting the polluting material directly into the water. The Court further stated if the conformation of the defendant's land is such that he cannot carry on a dairy without putting such filth directly into the water, than he must find some other use for the land (emphases added). It took the Court to say No to the continuing pollution of a water supply.

In 1897, the case of People v. Truckee Lumber Co. (116 Cal 397, 48 Pac. 374 - 1897) came before the Court. The requested action was to enjoin a nuisance. Truckee Lumber allowed saw mill wastes (shavings, dust, edgings and other wastes) to enter the Truckee River. The material was polluting the river, was poisoning aquatic life, killing trout and other aquatic life and was destroying a trout fishery. The chemical, biological and physical aspects of a significant length of the Truckee River were being impacted. The Truckee Court recognized the public trust nature of the various properties being impacted. The Truckee Court went on to state, "it is a well established principle that every person shall so use and enjoy his own property, however absolute and unqualified his title, that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property nor injurious to the rights of the public". The Court found that dumping mill wastes in the Truckee River violated the rights of the people and was a public nuisance. It took the California Court to say No to Truckee Lumber's continued pollution and nuisance associated with disposing mill wastes and other debris into public waters (Truckee River) impacting water quality, the people's fish properties (resources) and the fishery. These findings and rulings made over 100 years ago relied on common law nuisance theory. However they also fit the contemporary understanding of the public trust and the needs of the people interested in protecting water quality for all beneficial uses including ecological values, associated resources and uses, including private uses of water. The Woodruff v. North Bloomfield, Gold Run, Elk River and Truckee Lumber decisions make it clear that as a matter of law, one must exercise his or her rights or use his or her property so as not to infringe on the rights, interests or properties of others and that holders of water rights are entitled to the natural flow of the water undiminished in quality.

The public trust is an affirmation of the duty of the state to protect people's common heritage of streams, lakes, marshlands and tidelands, surrendering that right only in rare cases when abandonment of that right is consistent with the purposes of the trust (See National Audubon Society v. Department of Water and Power, City of Los Angeles (33 Cal 3d419, 658 P 2d 709, 189 Cal. Rpt. 346, cert. Denied 464 U.S. 977 - 1983). The Audubon Court tied public trust protection to the maintenance of natural resources for their innate value and not to private beneficial uses of water (Koehler, 1995, Water rights and the Public Trust Doctrine: Resolution of the Mono Lake Controversy, University of California, Berkeley. Ecology Law Review Quarterly, Vol. 22, No. 3 at 541).

The Federal Clean Water Act, as amended, the State's Porter/Cologne Water Quality control Act and the public trust doctrine embrace affirmatively and positively that the people are to be protected against all unwise and unreasonable uses of the State's waters. Uses of water can be considered unreasonable because they pollute, or because they offend our sense of aesthetics or natural beauty, or because they interfere with the right of the public to enjoy a natural resource of state or national significance, or because they threaten in a harmful way to upset the ecological balance of nature, or because to allow this unreasonable use confers a valuable privilege which is inconsistent with protecting the public trust. California administrative Code, Title 23, provides that upon cause shown by any interested person, the State Water Resources Control Board shall investigate any nuisance or unreasonable use of water or any public nuisance resulting from the use of water. Audubon, however, clarified that one does not have to exhaust administrative remedy before taking further action. The State Board's jurisdiction is not exclusive. The courts have concurrent jurisdiction (Audubon, 189 Cal. Rptr. 346 at 367).

Time for Action

Today, the corporations, landowners, water purveyors and farm operators responsible for the selenium-laden drainage and wastewater, should be held accountable for its toxic and nuisance impacts. This would include administrators of USBR (including water right permits and licenses), Department of Water Resources, Westlands Water District and other irrigation or drainage districts receiving federal water, such as Broadview Water District, Firebaugh Canal Water District, Pacheco Water District, Panoche Drainage District, Central California Irrigation District, Charleston Drainage District, land owners (including lending institutions) and the farm operators irrigating highly saline and seleniferous soils or otherwise causing drainage problems. They all must be held responsible and accountable for their actions and damages to beneficial uses and values. (See Newhall Land and Farming Co. v. Superior Court, 19 Cal. App. 4th; 23 Cal. Rptr. 2d 377 Oct. 1993). The bottom line is the SJV's saline seleniferous soils contain a tremendous reservoir of trace elements, including Se and a variety of salts. With the continued application of water to irrigate such soils, Se and a variety of salts will continue to leach from the soils to the shallow groundwater for years and years to come. This Se and salt leachate and drainage will continually degrade downslope lands, surface and groundwater, fish and wildlife habitats and other beneficial uses.

Beneficial uses of the Bay-Delta Estuary are at risk.

A use of water which so degrades the quality of the receiving ecosystem (wetlands and the San Joaquin River and Bay-Delta) to make it unsuitable for fish and other aquatic life, or which makes fish unsuitable for human consumption, or which is a hazard to other fish and wildlife, or which degrades ecological, aesthetic, recreational uses, small craft navigation, and scenic values, is inconsistent with public trust protection, the reasonable use of water and is a nuisance. Such a use of water is just as inconsistent with reasonable use and public trust protection as is the filling of tidelands (Mark v. Whitney 6 Cal, 3d 251 -1971); as is allowing mining waste and debris that impacted water quality and impede navigation (North Bloomfield and Gold Run); as is a ranch or farm which allows animal wastes and other filth to contaminate the waters of a stream which impacts the water supply and beneficial uses of downstream users (Elk River Mill and Lumber Co.); as is the deposition of mill wastes and other debris which destroys aquatic life and a fishery (Truckee Lumber Co), and as is the diversion of water which destroys numerous uses and values protected by the public trust (Audubon). The point made by the Elk River Court that if the conformation of the defendant's land is such that he cannot carry on a dairy without putting such filth directly into the water, than he must find some other use for the land (emphases added). I believe that this rational thinking is particularly relevant to the salt and Se drainage and wastewater issue of the Westside of the San Joaquin Valley.

The public trust doctrine, together with waste and unreasonable use and nuisance law, provide a principled and legal foundation for protecting water quality, especially against non-point polluters. Irrigation that causes pollution presumably can be regulated under the theory that the term "beneficial use " means both beneficial to the user and not harmful to the public interest. Protecting fisheries and other aquatic values necessarily implies protecting water quality (Johnson 1989, Water Pollution and the Public Trust Doctrine. Northwestern School of Law, Lewis and Clark College, Environmental Law Review, Vol. 19, No. 3 Spring 1989, at 485, 488, also see Audubon).

The State Water Resources Control Board dismissed my waste and unreasonable use, nuisance and failure to protect the public trust regarding the continued irrigation of saline / seleniferous soils and complaint filed in November 1995. The State Board rejected my complaint saying that my concerns are being addressed by means other than a waste and unreasonable use proceeding. There was no mention of the nuisance or failure to protect the public trust components of my complaint in the State Board's response letter of July 26, 2000.

The State Board did not authorize continued Se drainage and damages to public and private properties. Clearly the failure to prohibit the nuisance and impose penalties against those responsible does not prevent the Se contamination from being a nuisance.

In my opinion, the State Board by its actions admits that waste and unreasonable use, nuisance and failure to protect the public trust regarding the continued irrigation of saline / seleniferous soils, in fact, are serious ongoing problems. The State Board has bounced the problem to the Central Valley Regional Water Quality Control Board to seek other means to control the overall problems associated with Se and salt drainage and water quality contamination. So far the actions by the Regional Board have not been very effective.

Interestingly, the Sawyer decision also stated that the California Supreme Court has never recognized the validity of any custom to mine in such a manner as to destroy or injure the property of others (Fed. Rptr. Vol.12 at 802). From 1884 to today, has the Supreme Court of California validated any custom that allows farming in such a manner as to destroy or injure the property of others? I do not know of any such decisions. However, the State Board's actions apparently is a way to validate the supposed custom that allows one to farm in such a manner to destroy or injure the property of others.

In my opinion, the waste and unreasonable use, nuisance and failure to protect the public trust is on going. The Report indicates the continued irrigation of saline / seleniferous soils, with its drainage and wastewater and water quality issues are serious ongoing problems and that resources of the Bay-Delta Estuary are at risk.

Clearly, it is time for the environmental community to rethink and clarify its position regarding Se in the SJV, the San Joaquin River and the Bay-Delta Estuary. It is time to rethink the lawsuit regarding waste and unreasonable use, nuisance, and failure to protect the public trust discussed at earlier Board meetings.

The State has the authority to act to protect public trust interests. All it has to do is say, "No," to the continued dumping of seleniferous drainage into State waters, both surface and groundwater. It just needs the political will to do it. The essence of the California court rulings made over 100 years ago in Woodruff v. North Bloomfield - 1884, Gold Run -1884; Elk River Mill and Lumber Co. -1895; and Truckee Lumber -1897, could be reiterated in the 21st Century by a State or Federal court relative to the salt and Se laden drainage and wastewater situation of the Westside of the San Joaquin Valley. Such a ruling by a court would give the State the will to just do it.