Analysis on ruling that Fish and Wildlife Service required to justify pumping restrictions in the Delta

Posted by: Aqua Blog Maven on June 10, 2009 at 7:44 am

From Jacqueline L. McDonald of Somach Simmons & Dunn:

On May 29, 2009, in the United States Eastern District Court case of San Luis & Delta-Mendota Water Authority, et al v. Salazar (Case No. 1:09-CV-00407), the United States Fish and Wildlife Service (Service) was enjoined from restricting pumping operations in the Delta without justification and an explanation of why alternative, less severe restrictions would not adequately protect the delta smelt. The Court found that Plaintiffs San Luis & Delta-Mendota Water Authority and Westlands Water District (collectively “Westlands”) were reasonably likely to succeed on their claim that the Service violated the National Environmental Policy Act (NEPA) in failing to conduct environmental review before establishing pumping restrictions for the protection of delta smelt.

The Biological Opinion

In May 2007, in the related case of Natural Resources Defense Council v. Kempthorne (E.D. California, Case No. 1:05-CV-1207) (Kempthorne), the Eastern District Court invalidated the Service’s 2004 biological opinion that addressed impacts of the California Department of Water Resources (DWR) and the United States Bureau of Reclamation’s (Reclamation) joint operations of the State Water Project and Central Valley Project (collectively “Project”) on the delta smelt. The delta smelt is an aquatic species residing in the Delta that is listed as threatened under the federal Endangered Species Act (ESA). The Court ordered the Service to prepare a lawful biological opinion to ensure that the Project operations would not jeopardize the delta smelt in violation of the ESA. The Court held additional proceedings to impose interim remedies that would ensure that Project operations would not jeopardize the delta smelt while the Service prepared a new biological opinion. Due to the narrow considerations allowed by the ESA, the Court refused to hear any evidence related to the economic and environmental harm resulting from the proposed remedies.

Read more analysis, conclusions and possible implications from Jacqueline L. McDonald at Somach Simmons & Dunn by clicking here.

Analysis: Pacific Legal Foundation complaint alleges that the Delta smelt biological opinion is unconstitutional

Posted by: Aqua Blog Maven on June 10, 2009 at 7:26 am

From Brian D. Poulsen of Somach, Simmons & Dunn:

Introduction

On May 21, 2009, the Pacific Legal Foundation (PLF), on behalf of three farms in the San Joaquin Valley, filed a complaint in federal court against the United States Fish & Wildlife Service (Service) challenging the validity of the Service’s December 15, 2008, Biological Opinion on the effects of operating the diversion facilities in the Sacramento-San Joaquin Delta Estuary (Delta) to the threatened delta smelt. The complaint alleges various violations of the Administrative Procedures Act (APA), but more fundamentally, it challenges the constitutionality of the Endangered Species Act’s (ESA) application to purely intrastate species. Such application, PLF asserts, violates the Commerce Clause of the United States Constitution. Given the current state of the case law on this issue, it is possible that this case could reach the United States Supreme Court.

Background

The delta smelt, Hypomesus transpacificus, is a tiny fish endemic to the Delta. The Service listed the smelt as “threatened” under the ESA in 1993. See 58 Fed. Reg. 12,854 (Mar. 5, 1993). The United States Bureau of Reclamation (Bureau) and the California Department of Water Resources cooperatively divert water from the Delta and convey it through extensive infrastructure to central and southern California. The ESA requires the Bureau to consult with the Service in order to ensure the Bureau’s water diversions do not jeopardize the continued existence of the delta smelt. Such a consultation results in the Service issuing a Biological Opinion (BiOp) regarding the Bureau’s impacts to the delta smelt.

Could this case make it all the way to the Supreme Court? More background and analysis from Brian D. Poulsen of Somach, Simmons and Dunn by clicking here.

Judge Wanger issues injunction against federal Delta smelt plan

Posted by: Aqua Blog Maven on June 1, 2009 at 3:29 pm

From Dan Bacher at IndyBay.org:

U.S. District Judge Oliver W. Wanger in Fresno has granted a preliminary injunction by corporate agribusiness against the U.S. Fish and Wildlife Service (USFWS) biological opinion for Delta smelt, a plan providing for increased protected for the imperiled fish.

The state and federal pumps will increase water exports to San Joaquin Valley growers unless USFWS can justify reduced pumping on a week by week basis, according to Bill Jennings, chairman of the California Sportfishing Protection Alliance.

The injunction takes place at a time when Delta smelt, an indicator species that demonstrates the health of the Sacramento-San Joaquin River Delta, has declined to its lowest ever population level, according to surveys by the Department of Fish and Game. The collapse of Delta smelt is paralleled by the dramatic decline of longfin smelt, threadfin shad, juvenile striped bass, green sturgeon and Central Valley Chinook salmon. The Delta smelt and other estuary fish populations have crashed because of increases in water exports, toxic chemicals and invasive species in recent years.

Westlands Water District and the San Luis Delta-Mendota Water Authority had filed suit against the USFWS Biological Opinion, alleging failure to comply with the National Environmental Policy Act (NEPA) and requested a preliminary injunction.

In issuing the injunction, Wanger agreed with the plaintiffs that the reduction of exports to their agricultural operations would result in “irreparable” economic and environmental harm.

“Plaintiffs have shown that irreparable harm will likely occur in the absence of injunctive relief, including loss of water supplies, damage to permanent crops, including orchards and vineyards, crop loss or reduction in crop productivity, job losses, reductions in public school enrollment, limitations on public services, impaired ability to reduce the toxic effects of salt and other minerals in the soil, groundwater overdraft,increased energy consumption, and land fallowing that causes air quality problems,” said Wanger.

Read more from Dan Bacher at IndyBay.org by clicking here.

Delta smelt biological opinion: Wanger grants preliminary injunction

Posted by: Aqua Blog Maven on May 27, 2009 at 7:52 am

More on Friday’s Wanger ruling from the Pacific Legal Foundation:

This past Friday, Judge Wanger heard arguments on Westlands Water District and San Luis & Delta-Mendota Water Authority (Westlands) motion for a preliminary injunction of Component 2 of the delta smelt biop’s reasonable and prudent alternative. Component 2 will be in effect until June 30 or until the water temperature of Clifton Court Forebay reaches 25 degrees Celsius, whichever occurs first. The goal of this component is to protect larval and juvenile delta smelt in the central and south delta from entrainment at the project pumps after spawning commences in March. Under Component 2, negative water flows must be between 1250 and 5000 cfs.

Shortly after arguments were presented, Judge Wanger announced his ruling from the bench. Although he declined to reach the merits of Westlands’ ESA claims (failure to distinguish b/w non-discretionary and discretionary CVP operations; failure to analyze cumulative effects and other stressors on the delta smelt), Judge Wanger ruled in Westlands’ favor on the claim that the FWS failed to comply with NEPA in issuing the biop. Westlands had claimed that FWS was required to prepare an environmental impact statement along with the biop, as the biop constitutes a “major Federal action[] significantly affecting the quality of the human environment.”

Read more from the Pacific Legal Foundation by clicking here.

Saturday’s top story: Wanger rules that humans, not just fish, must be considered in divvying delta water

Posted by: Aqua Blog Maven on May 23, 2009 at 9:01 am

From the Fresno Bee:

A federal judge stunned and delighted west-side farmers on Friday, ruling that the federal government must consider the effect on humans — not just fish — when allocating delta water. U.S. District Judge Oliver W. Wanger did not tell officials how to operate the Central Valley Project, and he said it was up to them to manage the massive water pumps in the Sacramento-San Joaquin Delta.

But Wanger said officials must focus not just on protecting the endangered delta smelt when discussing these issues. They also must take into account “the harm being visited upon humans, the community and the environment.” He also said officials must explain and justify how they reached their water-allocation decisions.

A few months ago, the federal government in effect reduced the volume of water pumped out of the delta by issuing new rules to protect the smelt. That means west-side growers are receiving less water for crops.

Wanger’s ruling Friday raised growers’ hopes of getting some of that water back, although the case is far from over.

Read more from the Fresno Bee by clicking here.

DWR: Pump flow rules fishy; State asks feds to reconsider Delta smelt protections

Posted by: Aqua Blog Maven on May 15, 2009 at 6:47 am

From the Capital Press:

State water officials have asked the federal government to reconsider its rules for protecting the threatened Delta smelt.

Researchers have found a population of the tiny fish at Liberty Island, a flooded tract in the northern section of the Sacramento-San Joaquin Delta. That shows that the pumps in the southern Delta, which extract water for conveyance to San Joaquin Valley farmers and southern cities, may not be harming the tiny fish’s populations as much as previously thought, the department says.

“Flow restrictions imposed under the (biological opinion) should be re-evaluated in light of this new and unaffected Delta smelt population, which demonstrates a wider … distribution than previously considered,” the state Department of Water Resources states in a letter sent on May 7 to the U.S. Fish and Wildlife Service.

Read more from the Capital Press by clicking here.

Intent to sue USFWS filed; alleges Feds stall as State moves forward on increased legal protections for endangered Delta fish

Posted by: Aqua Blog Maven on March 25, 2009 at 8:22 am

Hey, look, it’s another new lawsuit regarding the Delta smelt – number four (?) and counting… (Ok, technically not a lawsuit yet, but an intent to sue….) From the Center for Biological Diversity, this press release:

The Bay Institute and Center for Biological Diversity today filed a notice of intent to sue the U.S. Fish and Wildlife Service for failing to make final determinations on federal Endangered Species Act listing petitions submitted for two critically imperiled San Francisco Bay-Delta fish species: longfin smelt and delta smelt. Due to inaction by the Bush administration, which blocked processing of the listing petitions, a final determination on the petition to list the Bay-Delta population of longfin smelt is seven months overdue, and a final determination on changing the status of the delta smelt from threatened to endangered is two years overdue.

“The longfin smelt was once among the most abundant fish in the open waters of the San Francisco estuary, and they were an integral part of this ecosystem’s food-web,” said Dr. Jonathan Rosenfield, conservation biologist at The Bay Institute. “The precipitous decline of longfin smelt, its distant cousin delta smelt, green sturgeon, steelhead, and two populations of Chinook salmon reveals an ecosystem collapse brought about by mismanagement of our freshwater resources and lax enforcement of our environmental laws.”

“The strong legal protections of the Endangered Species Act are needed to force state and federal regulators to take actions to save our native fish,” said Jeff Miller, conservation advocate with the Center for Biological Diversity. “Unsustainable record water diversions from the Delta are driving formerly abundant species at the base of the food chain to extinction and crippling Central Valley salmon runs.”

Since 2000, the Bay-Delta longfin smelt population has fallen to unprecedented low numbers. Since 2002, the delta smelt, a species already listed as threatened under the state and federal endangered species acts, has plummeted to its lowest population levels ever recorded. Numbers of delta smelt found in 2008 were the lowest in 42 years of surveys.

The conservation groups petitioned for federal protection for the Bay-Delta longfin smelt population in August 2007. In May 2008, the Fish and Wildlife Service made a positive 90-day finding on the petition. The final listing determination was due in August 2008. The conservation groups submitted a petition in 2006 to uplist the delta smelt’s federal status to endangered, a change necessary to compel fisheries agencies to implement recommended actions to protect Delta habitat. A final listing determination was due in March 2007. The Service made a positive 90-day finding on the petition in July 2008.

“The Bush administration deliberately delayed and blocked needed protections for dozens of endangered species, including the longfin smelt,” said Miller. “We’re hoping the Fish and Wildlife Service under the Obama administration will move quickly to enact protections for the smelt and take steps to restore the Delta’s fisheries.”

The California Fish and Game Commission has responded somewhat more proactively to state Endangered Species Act petitions submitted for the longfin and delta smelt. Earlier this month, the Commission voted to protect longfin smelt (Spirinchus thaleichthys) as a threatened species under the California Endangered Species Act and also changed the state protected status of delta smelt (Hypomesus transpacificus) from threatened to endangered.

“With present trends, the delta smelt will go extinct soon if we do not ratchet up protections and protect its habitat,” said Miller. “Federal and state agencies are not only failing to address the problem, but are moving forward with plans for diversions and storage projects that will increase the threats and further degrade Delta habitat.”

The San Francisco Bay-Delta ecosystem, an ecologically important estuary and a major hub for California’s water system, is now rapidly unraveling. Once-abundant fish species are in critical condition due to record-high water diversions, pollutants, and harmful nonnative species that thrive in degraded Delta habitat. Federal and state agencies have allowed record levels of water diversions from the Delta in recent years, leaving insufficient fresh water to sustain native fish and the Delta ecosystem.

Since 2002, scientists have documented catastrophic declines of delta smelt, longfin smelt, threadfin shad, Sacramento splittail, and striped bass. The state’s largest salmon run of Central Valley fall-run chinook is suffering from record decline. Federal fisheries managers have cancelled commercial and recreational salmon fishing in California for the second straight year due to low salmon returns. White and green sturgeon numbers in San Francisco Bay and the Sacramento River have also fallen to alarmingly low levels — the southern green sturgeon population was federally listed as threatened in 2006.

Because federal and state agencies have so mismanaged the Bay-Delta, California’s largest and most important estuary, courts have begun to order changes in water export operations to protect fish populations. In 2007, an Alameda County court ruled that the California Department of Water Resources had been illegally pumping water out of the Delta without a permit to kill delta smelt and other fish species listed under the California Endangered Species Act. A federal court also rejected a federal “biological opinion” allowing high water exports and ordered reduced Delta pumping. In 2008, a federal judge invalidated a water plan that would have allowed more pumping from the San Francisco Bay-Delta at the expense of protected salmon and steelhead trout.

For more information:
Longfin smelt: www.biologicaldiversity.org/species/fish/longfin_smelt/index.html
Delta smelt: www.biologicaldiversity.org/species/fish/Delta_smelt/index.html

The Bay Institute is a nonprofit organization that works to protect and restore the ecosystems of San Francisco Bay, the Sacramento-San Joaquin Delta, and the rivers, streams, and watersheds tributary to the Estuary, using scientific research, public education, and advocacy.

The Center for Biological Diversity is a nonprofit conservation organization with 200,000 members and online activists dedicated to protecting endangered species and wild places.

Three new lawsuits challenge limitations on Delta pumping

Posted by: Aqua Blog Maven on March 25, 2009 at 8:11 am

Here’s an informative article from Eric W. Davis of Somach, Simmons & Dunn, Eric W. Davis about the lawsuits challenging the smelt opinion:

Separate groups of contractors who receive water from California’s two largest water projects filed three different lawsuits this month challenging the U.S. Fish and Wildlife Service’s (FWS) recent Biological Opinion imposing restrictions on the operation of pumping facilities in the San Francisco Bay Delta. The lawsuits challenge both the substance of the FWS determination that pumping operations jeopardize the endangered delta smelt (Hypomesus transpacificus) and the procedure by which FWS arrived at that determination.

Interestingly, two of the three suits also allege that, in issuing the Biological Opinion, FWS had an independent duty under the National Environmental Policy Act (NEPA) to review the environmental consequences of the Biological Opinion.

More background information and legal analysis by clicking here.

Water users file third suit on water cuts for smelt

Posted by: Aqua Blog Maven on March 18, 2009 at 8:01 am

From the California Farm Bureau Federation:

A third lawsuit has been filed, challenging measures aimed to benefit the delta smelt. The Kern County Water Agency and water users represented by the group Coalition for a Sustainable Delta filed the suit last Friday in U.S. District Court in Fresno.

The suit mirrors two others filed previously by customers of the State Water Project and the federal Central Valley Project.

In each case, the lawsuits charge that federal agencies have ignored or overlooked scientific evidence that points to multiple causes for the decline in delta smelt populations. Instead, the lawsuits say, federal agencies have focused solely on the pumps that deliver water from the Sacramento-San Joaquin Delta to farms, homes and businesses in the San Joaquin Valley and Southern California.

Both the state and federal water projects have been required to reduce pumping to aid the delta smelt, which is protected as a threatened species under the federal Endangered Species Act and was classified as an endangered species this month under the state ESA.

Operation of the water projects’ pumping plants must conform to restrictions described in a “biological opinion” written by the U.S. Fish and Wildlife Service. The biological opinion has been enmeshed in litigation for years. Environmental groups sued to overturn the original opinion, leading to a revised document that has now been challenged by water agencies.

In announcing their lawsuit, the Kern County Water Agency and the Coalition for a Sustainable Delta said federal agencies “continue to ignore scientific data that point to a growing list of other factors or ’stressors’ that are impacting the Bay-Delta and the native fish that live there.” They say federal agencies “have done nothing” to address predation by non-native fish, habitat destruction, discharges of wastewater and storm water, and other factors harming the smelt.

Read more from the California Farm Bureau Federation by clicking here.

Bid to save fish could reduce water supply in California

Posted by: Aqua Blog Maven on December 25, 2008 at 6:24 am

From NPR, this radio broadcast:

A new effort to save an endangered fish may cut southern California’s water supply by as much as 50 percent. To preserve water for the state’s Delta Smelt, water is being taken away from farmers and cities such as Los Angeles.

Click here to listen to the 3:53 radio program by clicking here.

Restrictions increase uncertainty over Delta water

Posted by: Aqua Blog Maven on December 25, 2008 at 6:22 am

From the Patterson Irrigator:

Federal rules issued last week could further limit the state’s scarce water supply to protect an endangered fish unique to the Sacramento-San Joaquin Delta.

Local water officials say the new restrictions — issued by the U.S. Fish and Wildlife Service in response to the declining population of a tiny fish called the Delta smelt — aren’t likely to have a major impact on their water supplies. But they add to the increasing uncertainty farmers must deal with.

The restrictions themselves, which cut the amount of water the state is allowed to pump during times of year when the tiny fish are spawning, are basically in line with similar restrictions imposed last year.

But under certain hydrologic conditions in the driest of years, those restrictions could double. The state Department of Water Resources said last week that out of 80 years of past records, about 20 percent would have received the strictest cutbacks.

Still, the mere possibility that the cuts could be that drastic is unsettling for water officials and farmers alike.

“We’re going into every year with high uncertainty about how much water people will have,” said Lester Snow, DWR director. “It significantly affects the agricultural community trying to plan crops for the year.”

Read more from the Patterson Irrigator by clicking here.

Delta issues hold key to future water supply reliability

Posted by: Aqua Blog Maven on December 23, 2008 at 1:04 pm

From the California Farm Bureau Federation:

Three key developments involving the Sacramento-San Joaquin Delta in the past week set environmental parameters for protecting delta species and laid the foundation for addressing the region’s environmental problems and the future reliability of the state’s water supply. Experts say drought conditions, court decisions and a collapsing ecosystem have turned up the heat on finding solutions to these problems, elevating the importance of solid planning and prompt action.

A Delta Vision Blue Ribbon Task Force forwarded its final recommendations last week to state agency heads, who in turn sent them on to Gov. Arnold Schwarzenegger. An implementation plan comes in January.

A few days later, a completed draft conservation strategy for the Bay Delta Conservation Plan was presented to stakeholders, tentatively identifying a plan for water conveyance through and around the delta.

Added to that, the U.S. Fish and Wildlife Service delivered its biological opinion on the effect of pumping water from the delta. The opinion found that operation of the federal Central Valley Project and the State Water Project jeopardizes the continued existence of a protected fish, the delta smelt, and adversely modifies its critical habitat. The opinion outlines what the FWS calls “reasonable and prudent alternatives” intended to protect each life stage and critical habitat of the delta smelt.

For the State Water Project, deliveries throughout California could be permanently reduced by up to 50 percent under the biological opinion. Water deliveries to cities, farms and businesses throughout much of the state will be reduced about 20 percent to 30 percent on average, but cuts could be even greater under certain hydrologic conditions, analysts said.

“Recent headlines about the interruption of export water pumping operations in the delta to protect fish species underscore for all Californians what farmers and ranchers have been acutely aware of for years–the water supply for much of the state is in jeopardy,” said Chris Scheuring, managing counsel of the California Farm Bureau Federation Natural Resources and Environmental Division. “Without workable solutions for a reliable water supply, agriculture and the entire state economy are in peril.”

Read more

Farm group challenges smelt decision

Posted by: Aqua Blog Maven on December 19, 2008 at 6:05 am

From the Central Valley Business Times:

The U.S. Fish and Wildlife Service failed to meet the standards of the Endangered Species Act when it issued an order that threatens to cut California’s dwindling water supply by a third or more, argues a group calling itself the Family Farm Alliance in a legal challenge filed under the federal Information Quality Act.

“The law requires USFWS to base its decisions on evidence, not assumptions or its own prejudices,” says Dan Keppen, executive director of the Family Farm Alliance, which is based in Klamath Falls, Ore.

“The more important the action, the more impact it’s likely to have, the higher the quality standards to which it should be held,” says Mr. Keppen.

Read more from the Central Valley Business Times by clicking here.

Living within our water limits; the Delta smelt bi-op “forces us to acknowledge the limits of our water supply”, says commentary

Posted by: Aqua Blog Maven on December 18, 2008 at 8:46 am

From the Santa Clarita Signal, this commentary by Cam Noltmeyer, a community activist and a board member of Santa Clarita Organization for Planning and the Environment:

A few days ago, the U.S. Fish and Wildlife Service issued its final “biological opinion” on the Sacramento Delta Smelt. In order to protect this endangered fish, the opinion will make permanent the pumping reductions ordered last year by Judge Oliver Wanger.

But to many people who have been working on water supply issues in the state, it accomplishes something far more important. It forces us to acknowledge the limits of our water supply.

For the past several generations, since Mulholland in the 1900s and Pat Brown in the 1960s with the State Water Project, Angelenos, including Santa Claritans, have turned on their taps and water came out. It was cheap, it was abundant, and it was always there. So we thought no more about it.

But the technology and massive engineering projects that brought us this miracle of cheap and accessible water neglected the one issue of prime importance: its limits.

People just didn’t think about it. The Sacramento River seemed so huge the supply would be boundless, so there really was no limit.

Now, with a burgeoning population in our state and in the world, limits are appearing everywhere. There are limits to fossil-fuel reserves, limits to our forests and limits to our water supply in California.

Read more of this commentary from the Santa Clarita Signal by clicking here.

Water restrictions could boost costs to consumers, farmers

Posted by: Aqua Blog Maven on December 18, 2008 at 8:00 am

From the Bakersfield Californian:

Water districts that rely on the San Joaquin-Sacramento Delta for much of their water supply are fuming over a U.S. Fish and Wildlife Service decision that could potentially hike water rates for consumers and hurt farmers already smarting from a drought.

“We believe these are dangerous regulations and they will severely impact water users in Kern County and throughout the state,” said Jim Beck, general manager of the Kern County Water Agency, which contracts for water on behalf of agricultural, municipal and industrial water districts in Kern.

Assuming that y’all know the background here, how will this affect Kern County?

For now, water rates for customers of California Water Service Co. should not be affected, said Bakersfield district manager Tim Treloar. Wells and other sources of water have thus far helped the company through the period since the court-ordered pumping restrictions took effect, Treloar said.

But wells must be replenished or new water sources found, and over the long-term, rates will probably have to go up if nothing changes, he said.

That said, Treloar added it’s unlikely that the status quo will continue. “There’s no easy fix to this, but it has to get fixed and it will,” he said. “Agriculture, urban and environmental interests cannot dominate the delta, any of them. We’re going to have to get in balance.”

Read more from the Bakersfield Californian by clicking here.

Department of Fish and Game comments on U.S. Fish and Wildlife Service biological opinion on Delta smelt

Posted by: Aqua Blog Maven on December 16, 2008 at 4:43 pm

From the California Department of Fish & Game, this press release:

California Department of Fish and Game (DFG) Director Donald Koch issued the following statement regarding the U.S. Fish and Wildlife Service’s biological opinion on Delta smelt. The opinion was issued today in compliance with a federal judge’s order.

“The biological opinion issued today provides measures to address the effects of the operation of state and federal pumps on a single species, the Delta smelt. However, the information contained in the document clearly underscores the fact that the Delta as a natural community is in trouble. A more comprehensive approach to improving the condition of the Delta for fish and wildlife is being developed in the Bay-Delta Conservation Planning process. The Bay Delta Conservation Plan includes input from a diverse group of stakeholders including state and federal fishery agencies, public water agencies, environmental and other state and local organizations – all of which are deeply invested in the long term sustainability of the Delta. DFG has been actively involved in the Bay Delta Conservation Planning effort and we are committed to its success. Our goal is to protect and ensure the sustainability of the fish and wildlife species that rely on a healthy Delta.”

Coverage wrap up: U.S. Fish & Wildlife Service issues rules to protect Delta smelt; Some in California could see water supply cut in half

Posted by: Aqua Blog Maven on December 16, 2008 at 8:55 am

From the Sacramento Bee:

Some Californians could see their water supply cut as much as 50 percent under new federal rules to protect threatened fish in the Sacramento-San Joaquin Delta.

The rules, released Monday by the U.S. Fish and Wildlife Service, govern water pumping operations by the California Department of Water Resources and U.S. Bureau of Reclamation. The agencies operate massive water diversion systems near Tracy that export Delta water for farm and urban purposes, from Silicon Valley to San Diego.

Two-thirds of Californians get at least some of their water from the Delta. It also irrigates nearly 3 million acres of farmland. But these water diversions have pushed the Delta smelt, a fingerling fish native to the estuary, to the edge of extinction.

The new rules, called a biological opinion, were prepared under a federal court order that found existing regulations inadequate.

DWR estimated Monday that, in average weather years, the cuts could range from 20 to 30 percent. But in roughly one out of five years – typically a wet fall followed by a severe dry year – the cutbacks could reach 50 percent.

“This will have significant impacts in the agricultural community and it probably will start having an impact on economic development in urban areas because the water supply is becoming less certain,” said DWR Director Lester Snow.

From Stockton’s Record:

The U.S. Fish and Wildlife Service found in a 410-page review that the pumps are jeopardizing Delta smelt, something environmentalists and Delta advocates say is old news.

“We believe it’s been clear since at least 1978 that the (pumps) have been severely damaging fish and wildlife, and yet they continued to increase exports,” said Stockton water attorney Dante Nomellini, who represents central Delta farmers.

A federal judge last year threw out rules that said the pumps weren’t a threat and put in place temporary restrictions to protect smelt. He ordered that new rules be written by Monday.

Those rules will continue some of the same restrictions ordered by Judge Oliver Wanger, such as improving flows on the Old and Middle rivers, which run backward and carry fish to their demise when the pumps are churning.

From the San Francisco Chronicle:

The rules are among the most comprehensive ever put together under endangered species laws to protect a single species of fish, according to experts.

“We’re very pleased,” said Tina Swanson, a fish biologist and senior scientist at the Bay Institute, a nonprofit research organization dedicated to protecting San Francisco Bay and delta ecosystem health. “The biological opinion includes curtailments in water exports from the delta during times of the year when delta smelt are spawning and the young larvae and juveniles are present. The requirements are there to reduce the number of delta smelt sucked into the pumps and killed.”

Swanson has long pushed for provisions mandating increased freshwater flows down the river in the fall because, she said, studies have shown that delta smelt populations increase when there is more water.

The health of the delta smelt, a fish that is only one to two inches long, is, according to biologists, a sign of the overall health of the ecosystem, including other fish species such as striped bass, longfin smelt, threadfin shad and Chinook salmon. At stake is not only a rare species of fish uniquely adapted to the delta’s shifting currents and brackish water but also the drinking water for 25 million Californians and irrigation for 750,000 acres of cropland.

From Mike Taugher at the Contra Costa Times/San Jose Mercury News:

The biologists’ prescription strictly limits the number of fish that can be killed at the pumps and also limits water managers’ ability to run the pumps so hard they reverse the flow of two channels. Those limits are similar to interim measures Wanger ordered last year. State water officials said that ruling cut water supplies by about 730,000 acre-feet, or enough for about 1.5 million families.

The permit also will require water managers to release water to flush the Delta of saltwater in the fall of wet years. That could significantly deplete water supplies in about one in five years.

Environmentalists were pleased. “It’s certainly a forceful step in the right direction,” said Bill Jennnings, director of the California Sportfishing Protection Alliance.

Water agency representatives across the state were displeased. They said the new conditions were unnecessarily draconian and were unlikely to revive the fish.

“The thing that’s really disturbing about it is in a drought you’re hoping it will end. With these regulations, we’re never going to get back to normal,” said Laura King Moon, assistant general manager of the State Water Contractors. Moon said it was “definitely a possibility” that her organization would sue to overturn the permit.

From the Los Angeles Times:

“This is a major new reduction in water deliveries that will impact families, businesses and farmers throughout California,” said Laura King Moon, assistant general manager of the State Water Contractors.

The state project, which will be the most affected, provides about a third of the Southland’s urban water. The rest comes from the eastern Sierra, the Colorado River, local groundwater reserves and reclaimed supplies.

An ongoing drought in the Colorado basin has cut deliveries of surplus water that Southern California has long depended on. And a statewide drought has depleted reservoirs the length and breadth of California. If this is another dry winter, managers for the Southland’s biggest water agency say they will have to cut deliveries to local districts, leading to rationing.

Agriculture interests have called for the construction of reservoirs, water districts are urging homeowners to conserve water and environmentalists say it’s time to recognize the limits of California’s water supply.

“We need to make a fundamental change in how we see and use water,” said Doug Obegi, an attorney with the Natural Resources Defense Council, one of the groups that filed the smelt lawsuit. “There are a ton more opportunities in water conservation, improved groundwater management, water recycling and design that captures storm water.”

Press Releases:

• Federal government calls for stronger Delta smelt protection; Preventing extinction for fish offers chance to solve California’s water woes – National Resources Defense Council
• New biological opinion will protect San Francisco Bay-Delta; State and federal water projects operators must protect native fish from extinction – Earth Justice
• Delta water exports could be reduced by up to 50 percent under new federal biological opinion – California Department of Water Resources
• California’s primary water supply slashed; Long-term restrictions are devastating to public water agencies – State Water Contractors
• ACWA issues statement on Delta smelt biological opinion; stage set for dire water supply impacts, possible conflicts with other species – Association of California Water Agencies
• Metropolitan general manager’s statement on federal biological opinion for Delta smelt – Metropolitan Water District

For links to the biological opinion, >click here.

Dan Bacher: Federal agency releases new biological opinion for Delta smelt

Posted by: Aqua Blog Maven on December 16, 2008 at 8:38 am

From Dan Bacher at FishSniffer:

The federal government issued a rewritten management plan for Delta smelt today, declaring that water operations must be dramatically altered to protect the imperiled fish and California’s Bay-Delta ecosystem from imminent collapse.

Fishing and environmental groups praised the new decision by the U.S. Fish and Wildlife Service, saying it will help restore the ecological health of the West Coast’s largest estuary and its threatened fisheries. The biological opinion was issued today in compliance with a federal judges order that a Bush administration assessment of risk to the threatened fish from massive water export pumps in the California Delta was illegal and must be rewritten.

In his ruling in May 2007, Judge Oliver W. Wanger of the U.S. District Court in Fresno ordered the agency to rewrite its 2005 opinion, saying “The Delta smelt is undisputedly in jeopardy as to its survival and recovery.The 2005 BiOp’s ‘no jeopardy’ finding is arbitrary, capricious, and contrary to law.”

“We are delighted that the U.S. Fish and Wildlife Service has finally recognized that we have reached the limits of how much water can be pumped out of the Delta without causing the complete collapse of the Delta ecosystem and all the creatures that depend upon a healthy Delta for their survival — including people, said Mike Sherwood, Earthjustice attorney. “The Service found that excessive pumping of water out of the Delta over the last several years is driving the Delta smelt, an indicator of the overall health of the Delta, to extinction.

Read more

Federal government calls for stronger Delta smelt protection; Preventing extinction for fish offers chance to solve California’s water woes

Posted by: Aqua Blog Maven on December 16, 2008 at 6:09 am

From the National Resources Defense Council, this press release:

SAN FRANCISCO (December 15, 2008) – The U.S. Fish and Wildlife Service (FWS) says the delta smelt, already listed as a threatened species, needs greater protections if the species is to survive, according to a biological opinion released today.
“Fish need water to survive,” said Doug Obegi, staff attorney at the Natural Resources Defense Council. “Today’s opinion reflects the conclusion of numerous scientists and the Governor’s own task force, who all agree that the delta smelt need additional protections to keep them from going extinct. The opinion requires the state and federal water projects to operate in a more environmentally sustainable manner that better protects delta smelt, salmon, and the fishermen and farmers who depend on healthy fisheries and clean water.”

Earlier this year, Governor Schwarzenegger’s Delta Vision Blue Ribbon Task Force likewise recommended reducing water exports from the Sacramento-San Joaquin Delta in the spring and fall months, in order to protect the breeding ground for the smelt, and important habitat for several other threatened and endangered fish populations. Today’s opinion results from a 2007 federal ruling that required FWS to issue a biological opinion that complied with the Endangered Species Act.

Data from the state Department of Water Resources demonstrate that investments in water supply alternatives (including water conservation, wastewater recycling, conjunctive groundwater management, and low impact design to capture stormwater) could yield more new water each year than previously exported from the Delta – enough to supply 14 million homes each year.

Tom Zuckerman, a farmer in the Delta who works as special projects manager for the Central Delta Water Agency said, “Delta farmers also depend on water to raise our crops. We know that the water projects have simply been pumping too much water. Delta farmers and our local economy will benefit from adequate protections for the delta smelt.”

The peer-reviewed Formal Endangered Species Act Consultation on the Proposed Coordinated Operations of the Central Valley Project (CVP) and State Water Project reflects years of scientific study and requires state and federal water projects to modify water exports to prevent the extinction of the delta smelt. The opinion’s protections should reduce the number of delta smelt killed in the pumps and should protect suitable habitat to allow juvenile smelt to grow and reproduce.

“The business community in Contra Costa Country believes that a healthy Delta strengthens Contra Costa County’s economy,” said Bob Whitley, a member of the Board of Directors of the Contra Costa Council, a business advocacy organization. “We believe that scientifically supported protections are essential for protecting the Delta environment, as well as Contra Costa County and the state’s economy.”

The recent decline of the delta smelt and other species coincides with significant increases in freshwater exports out of the Delta by the state and federal water projects. In the history of the state and federal water projects, five of the six years with the highest levels of water exports have occurred since 2000. Scientists point to the increased water exports as a significant cause of the delta smelt’s decline.

“Greater protection for the smelt translates into more protection for the Delta and economically important fish such as the salmon,” said Zeke Grader, Executive Director of the Pacific Coast Federation of Fishermen’s Associations. “To restore the smelt and the salmon, overdrafting water of the rivers and Delta has got to stop.”

In 2006, Governor Schwarzenegger established the Delta Vision Blue Ribbon Task Force to develop a plan to sustainably manage the Delta. Sustainably managing water exports from the Delta is a critical step in preventing the extinction of delta smelt, salmon and other fish species. The Delta Vision Strategic Plan lays out a comprehensive solution to meet California’s water needs while protecting the Delta environment. The plan calls for reducing reliance on water exports from the Delta, investing in alternative water supplies, reforming the agencies that manage the water projects, restoring habitat and water quality, and realistically evaluating new water conveyance infrastructure.

“We look forward to working with the Governor and legislature to implement the Delta Vision Strategic Plan’s bold, innovative 21st century water plan. This plan can solve California’s water woes, restore the Delta ecosystem and save California’s salmon fishery,” said Obegi.

For more information on the opinion, go to Doug Obegi’s blog: http://switchboard.nrdc.org/blogs/dobegi/

New biological opinion will protect San Francisco Bay-Delta; State and federal water projects operators must protect native fish from extinction

Posted by: Aqua Blog Maven on December 16, 2008 at 6:06 am

From Earth Justice, this press release:

In a stark reversal of its earlier position, the U.S. Fish and Wildlife Service today declared that water operations in California must be altered to protect California’s Bay-Delta ecosystem from collapse. Conservation and fishing groups praised the new decision, which will help restore the ecological health of the West Coast’s largest estuary and the fisheries that depend upon clean water.

The Fish and Wildlife Service’s latest decision comes in a biological opinion issued on the delta smelt, a fish native to the Sacramento-San Joaquin Delta that is listed under the federal Endangered Species Act. Scientists say that the smelt are an indicator of the health of the entire Bay-Delta ecosystem, and representative of a much larger decline in local fisheries, including striped bass, longfin smelt, threadfin shad, and Chinook salmon.

Among the findings in the new Biological Opinion on the Operations of the Central Valley Project and State Water Project:

* The delta smelt are at their lowest level of abundance since 1967;
* Continued operation of the projects’ pumps, dams, and canals will likely lead to the extinction of the smelt;
* To survive and recover, smelt need more cold, clean water and improved habitat conditions.

Read the full biological opinion (8MB PDF)

Statement by Mike Sherwood of Earthjustice:

“We are delighted that the U.S. Fish and Wildlife Service has finally recognized that we have reached the limits of how much water can be pumped out of the Delta without causing the complete collapse of the Delta ecosystem and all the creatures that depend upon a healthy Delta for their survival — including people. The FWS found that excessive pumping of water out of the Delta over the last several years is driving the Delta smelt — an indicator of the overall health of the Delta — to extinction. Excessive pumping and other operations of the State and Federal Water Projects has also driven California salmon and steelhead to the brink of extinction, resulting in the collapse of the multi-million dollar salmon fishery in northern California.

“Contrary to statements by the California Department of Water Resources and the commercial water industry, this will not cause millions of California citizens to go thirsty. Instead, limiting pumping of water out of the Delta to sustainable amounts is good for the smelt, good for salmon and the northern California fishing and native American communities that depend upon the salmon, and good for people who depend upon clean water and a healthy Delta. The amount of water “lost” by this biological opinion can easily be made up by simple conservation measures such as more efficient irrigation systems in farms and by switching from inappropriate and water-intensive crops such as cotton to crops more appropriate for an arid climate.”
The End of a Long Legal Battle

In 2005, U.S. Fish and Wildlife issued a biological opinion on the Long-Term Operational Criteria and Plan (OCAP) for coordination of the Central Valley Project and State Water Projects that found no harm in increasing pumping from the Delta. Water project operators used the wildlife’s agency’s opinion as justification to increase delta exports and to renew 25- and 40-year contracts to irrigation districts and urban water agencies.

In 2006, conservation groups sued in federal court, arguing that the 2005 Biological Opinion was not supported by science. Attorneys from Earthjustice and Natural Resources Defense Council represented California Trout, San Francisco Baykeeper, Friends of the River, and the Bay Institute in the 2006 court challenge.

In May 2007, federal court judge Oliver Wanger in Fresno vacated the 2005 BiOp finding that increased water exports violated the federal Endangered Species Act. This began the process of writing a new permit that was finalized today.

In his ruling, Judge Oliver W. Wanger of the U.S. District Court in Fresno wrote, “The Delta smelt is undisputedly in jeopardy as to its survival and recovery. The 2005 BiOp’s ‘no jeopardy’ finding is arbitrary, capricious, and contrary to law.”

California’s primary water supply slashed; Long-term restrictions are devastating to public water agencies

Posted by: Aqua Blog Maven on December 15, 2008 at 7:26 pm

From PR Newswire, this press release from the State Water Contractors:

Public water agencies throughout Northern, Central and Southern California now face major supply cutbacks in the latest federal regulatory blow to their ability to deliver water to customers. The restrictions point sharply to the need for a more comprehensive and sensible approach to managing the state’s water supply and fish habitat concerns.

The cutbacks, effective immediately, were outlined today by the U.S. Fish & Wildlife Service in a revised biological opinion for the Delta smelt, a threatened fish species that lives in the Sacramento-San Joaquin Delta (Delta). The biological opinion, or permit, sets guidelines for State Water Project (SWP) and Central Valley Project (CVP) pumping operations out of the Delta to ensure there is no long-term jeopardy to the health and habitat of the Delta smelt. The SWP and CVP are the state’s primary water delivery systems and collectively deliver water to 25 million Californians and 3 million acres of agricultural land.

“California’s primary water supply has just taken another big hit,” said Laura King Moon, assistant general manager of the State Water Contractors. “This is a major new reduction in water deliveries that will impact families, businesses and farmers throughout California.”

The timing of the new delivery cutbacks couldn’t be worse. California is in a severe drought. Our state reservoirs are at their lowest levels in years. A much reduced water supply will have severe economic impacts during the worst economic crisis of our lifetime. To put this in perspective, a recent study, commissioned by public water agencies, determined that the economic impact of a 30 percent water supply cutback could range from $500 million annually to more than $3 billion during prolonged dry periods.

At the same time, there has been no conclusive scientific evidence that water delivery cutbacks from the Delta will benefit the Delta smelt. Scientists have identified several other possible causes of the smelt population decline. Invasive plants and aquatic animals are upsetting chemical and biological balances in the Delta, toxic runoff from pesticides and wastewater treatment plant discharges are flowing through Delta waters and nonnative predator fish introduced for sport fishing have altered the natural food web.

“Public water agencies are committed to the rehabilitation of fish populations in the Delta. We firmly believe that the only way to be successful is to focus on all of the factors impacting the species — not just finger- pointing at water exports,” added Moon.

“We’ve hit ground zero officially. This species-by-species approach to addressing the Delta crisis is destroying our statewide water supply,” added Moon. “Piecemeal regulations and lawsuits won’t restore the ecosystem or ensure water supplies for our people, businesses and farms — we need a comprehensive plan for the Delta.”

Public water agencies, environmental organizations, and state and federal agencies are working together to develop a long-term solution. The Bay Delta Conservation Plan (BDCP), a comprehensive conservation plan for the Delta, will provide a basis for addressing the many threats to the Delta needed for fishery and ecosystem recovery, while finding a way to continue to deliver water to Californians throughout the state.

The State Water Contractors is a non-profit association of 27 public agencies from Northern, Central and Southern California that purchase water under contract from the California State Water Project. Collectively the State Water Contractors deliver water to more than 25 million residents throughout the state and more than 750,000 acres of agricultural lands. For more information on the State Water Contractors, please visit http://www.swc.org.

ACWA issues statement on Delta smelt biological opinion; stage set for dire water supply impacts, possible conflicts with other species

Posted by: Aqua Blog Maven on December 15, 2008 at 6:04 pm

From Market Watch, this press release from the ACWA:

Association of California Water Agencies (ACWA) Executive Director Timothy Quinn issued the following statement today on a new biological opinion for Delta smelt. U.S. District Court Judge Oliver Wanger ruled in 2007 that the previous opinion was inadequate, and ordered state and federal fish agencies to issue a revised one by today. The opinion, which forms the basis for new operating rules for the State Water Project and federal Central Valley Project, could result in permanent restrictions on water deliveries through the Delta, reducing deliveries by up to 50% in some years. The projects serve more than 25 million Californians and millions of acres of farmland.

“All Californians should be deeply concerned about the decision regarding Delta smelt announced today by the U.S. Fish and Wildlife Service. The decision will have tremendous impacts for 25 million people in the Bay Area, Central California and Southern California, with no guarantee that the fish and the ecosystem will benefit.

“Last month, a group of thoughtful Californians released a Delta Vision Strategic Plan that called for comprehensive water policies based on the co-equal goals of ecosystem health and a reliable water supply. Today’s action demonstrates how far we are from achieving those co-equal goals.

“This decision focuses on a single species when, instead, we need to focus on the entire ecosystem. It regulates only water project operations when the science clearly indicates that other stressors — including exotic species, land uses and pollution — play a major role in the demise of the aquatic ecosystem. Further, this decision will do nothing to solve the underlying structural causes of the conflict between the needs of the aquatic environment and the state’s water system.

“The benefits to Delta smelt are highly speculative because of the very limited approach being taken. What is not speculative, however, is the very real impact on our economy these actions will have. This will certainly add to on-farm jobs losses, push additional businesses into failure, and further burden our urban and agricultural economy at a time when the state and the nation are in an economic tailspin.

“What’s happening here is a single-species, single-stressor approach using half-century-old infrastructure that pits species protection against the California economy — all under the control of a federal judge. It’s an approach inherited from the past, and frankly we need new leadership.

“It should be apparent to everyone that we are on the wrong train. This single-species, single-stressor train left the station decades ago and has yet to produce satisfactory results for any species or our long-term water supply reliability. There is no reason to think the next round of narrowly focused actions will be any more beneficial for fish than the last one — and we know it’s more bad news for water supplies and the state and national economy. This week it is Delta smelt, last week it was longfin smelt, and in a few months it will be the salmon. The requirements of these decisions will almost certainly be in conflict with each other, and everything will be in conflict with a healthy economy.

“The only way forward is to get off this train and board a new one with the right destination — a comprehensive approach that focuses on the ecosystem and a portfolio of solutions, including actions to address all stressors and structural improvements in the water supply system, including conveyance and storage, to reduce conflict between the aquatic environment and water supply reliability. We need to move, on an urgency basis, to adopt such a comprehensive approach that can work for the environment and our economy.

“This must be a priority for the new administration in Washington, D.C. Every day we stay on the wrong train is another day of further ecosystem decline and lost water supplies.”

ACWA is a statewide association of public agencies whose 450 members are responsible for about 90% of the water delivered in California. For more information, visit www.acwa.com.

Delta water exports could be reduced by up to 50 percent under new federal biological opinion

Posted by: Aqua Blog Maven on December 15, 2008 at 4:01 pm

From the Department of Water Resources, this press release:

State Water Project (SWP) deliveries throughout California could be permanently reduced by up to 50 percent under a new Delta smelt Biological Opinion issued today. Water deliveries to cities, farms and businesses throughout much of the state will be reduced about 20 to 30 percent on average, but cuts could be even greater under certain hydrologic conditions.

The opinion, released today by the U.S. Fish and Wildlife Service, will continue reductions in SWP and federal Central Valley Project Delta water exports in effect since a December 2007 federal court order to protect Delta smelt.

Department of Water Resources (DWR) Director Lester Snow issued the following statement in response to the opinion:

“DWR has long been committed to implementing effective environmental protections, as well as ensuring reliable water supplies for all Californians. But I am concerned that this new Biological Opinion fails to apply a comprehensive approach in dealing with at-risk fish species in the Delta. We know there are many stressors causing havoc in the Delta – including toxic pollutants, invasive species, climate impacts, power plant operations, illegal diversions and overall loss of habitat and food. Today’s action by the federal government looks only to the water projects rather than having a complete view of all causes for Delta fish decline.

We expect that the U.S. Bureau of Reclamation will seek additional clarification on the proposed fall actions in the Biological Opinion. These actions would have the most severe reductions in State Water Project water exports in dry years, when the water is needed most.

A long-term approach for the conservation of all at-risk fish species in the Delta, like that being developed under the Bay Delta Conservation Plan, is clearly our best and most effective solution to reduce the conflicts between maintaining a reliable water supply and restoring the Delta ecosystem.

The crisis in the Delta is having real-time impacts on California’s economy and must be addressed comprehensively. As Gov. Schwarzenegger has said, new storage, improved conveyance and increased water conservation are all necessary so that we may contribute to the conservation and recovery of the Delta as a whole.”

The most recent scientific studies indicate that entrainment in SWP pumps is not the greatest factor in reducing Delta smelt population. The Biological Opinion also calls for increased reservoir releases in the fall of some years to reduce salinity. This may be in direct conflict with a Biological Opinion to protect salmon that is expected in March 2009.

Given California’s drought conditions, an agricultural water crisis, and various urban water cutbacks, California cannot afford further pumping restrictions without careful coordination.

Delta Smelt

Delta smelt are native to and found only in the Sacramento-San Joaquin Delta. The rapid decline of Delta smelt and other Delta fish indicate the Delta ecosystem is troubled. Factors such as reduced food sources for fish due to invasive species, increased water temperatures due to rising air temperatures, and increased discharges of ammonia and other toxics are all implicated in adversely affecting the ecosystem. However, the fishery agencies continue to only focus on actions related to pumping to solve this complex problem. Until more holistic approaches are taken to address all these environmental stressors, the delta ecosystem will continue to not improve.

The Delta smelt was listed as threatened under the Endangered Species Act in 1993, and is currently being considered for listing under the “endangered” status. Actions to protect the fish have already resulted in pumping reductions and a complete 12-day halt in SWP exports during June 2007.

Metropolitan general manager’s statement on federal biological opinion for Delta smelt

Posted by: Aqua Blog Maven on December 15, 2008 at 3:57 pm

From Business Wire, this press release from the Metropolitan Water District:

Jeffrey Kightlinger, general manager of the Metropolitan Water District of Southern California, issues the following statement regarding the U.S. Fish and Wildlife Service’s new biological opinion regarding Delta smelt that will guide operations of the State Water Project in the Sacramento-San Joaquin Delta:

“There is a regulatory noose around the state’s most important water system, and it is tightening. We are facing a species-by-species, lawsuit-by-lawsuit, regulation-by-regulation approach to managing the Delta. It is a cycle of conflict that can only be broken with a comprehensive, sustainable fix for the Delta. That fix must include restoration of the ecosystem in tandem with major changes to the water system.

“Metropolitan staff will review this new biological opinion for the Delta smelt in the coming days to identify its potential impacts on supplies for 19 million Southern Californians in our six-county service area.”

The Metropolitan Water District of Southern California is a cooperative of 26 cities and water agencies serving 19 million people in six counties. The district imports water from the Colorado River and Northern California to supplement local supplies, and helps its members to develop increased water conservation, recycling, storage and other resource-management programs.

Delta smelt biological opinion now posted online

Posted by: Aqua Blog Maven on December 15, 2008 at 2:14 pm

The U. S. Fish & Wildlife Service has delivered the Delta smelt (OCAP) biological opinion to the Bureau of Reclamation, as well as posted them online.  Here are the links to the reports:

Complete biological opinion (PDF 8.3 MB)
Official signed version (non-OCR)
For easier downloading, here is the opinion divided into three sections:

• Background (5.5 MB)
  Cover Letter, Consultation History, Table of Contents, Project Description, Analytic Frameworks, Status of the Species
• Determinations (2 MB)
  Effects of the Proposed Action, Reasonable and Prudent Alternative, Incidental Take, Conservation Recommendations, Closing Statement

For more information:  U. S.  Fish & Wildlife Service, Sacramento Office.

I’ll post any press releases as they come in.

Proposed Delta smelt restrictions in the irk state water officials

Posted by: Aqua Blog Maven on December 13, 2008 at 7:23 am

From Mike Taugher of the San Jose Mercury News:

State water managers have sharply criticized environmental protections for the Delta that are part of a long-awaited permit expected to be issued Monday. The permit is meant to protect a tiny fish, the Delta smelt, that is believed to be close to extinction.

After years of record and near-record levels of water deliveries, the smelt and other fish species have collapsed. Biologists are proposing tough new restrictions to reverse that.

Known as a biological opinion, the new permit was ordered last year by U.S. District Judge Oliver Wanger, who concluded that a previous version was too weak to save the fish.

Last week, Sen. Dianne Feinstein sought to delay the permit, which was originally due in September. By Friday, the likelihood of a further delay appeared to be fading.

Exactly how much water agencies from the East Bay to San Diego will lose is unknown. But in a Dec. 1 letter, the state Department of Water Resources warned the impact will be severe and that biologists were unfairly targeting water operations while ignoring other threats to the fish.

Read more from the San Jose Mercury News by clicking here.

Study underscores impact of court imposed water pumping restrictions; “Environmental activists are playing a very dangerous game with the state’s economy and the livelihoods of the state’s residents as they seek additional restrictions” says spokesperson

Posted by: Aqua Blog Maven on December 12, 2008 at 1:26 pm

From the Coalition for a Sustainable Delta, this press release:

A new study released today underscores the severity of the statewide economic and water supply implications of ongoing water pumping restrictions imposed by federal courts in California to protect the Delta smelt. According to the study, statewide economic impacts can exceed $1 billion per year during drought years such as those currently facing the state and may well exceed $3 billion should the state enter a prolonged dry period.

Additionally, the report documents the severe water supply implications of the Court’s orders. Even during average and wet periods the Court imposed restrictions exacerbate ongoing drought conditions by limiting the ability of water managers to replenish water storage facilities and groundwater reserves. The net result is a significant additional blow to the state economy and a greatly reduced ability to respond to severe drought and other emergencies.

“The study documents immediate and very severe economic impacts to an already reeling state economy and highlights the longer-term water supply implications resulting from a reduced ability to replenish our reservoirs, groundwater storage facilities and other critical reserves, said Terry Erlewine, General Manager of the State Water Contractors. The sad reality is the courts have taken over operational control of the state’s water supply system. Clearly, the state’s residents, farms and businesses will be paying a steep price for years to come.”

Commissioned by Bay Area, San Joaquin Valley and Southern California water users, the timely report was designed to provide a better understanding of the economic and water supply impacts of an Interim Order, designed to protect the Delta smelt, imposed by Judge Oliver Wanger of the United States District Court for the Eastern District of California last December 14, 2007. The study also provides important insight on the economic and water supply reliability impacts of additional restrictions being sought for fishery and ecosystem protection.

The crucial assessment comes just as a court-ordered revised Biological Opinion outlining the impacts of the state’s water pumping operations on the endangered smelt is due to be submitted. The study’s estimates are very conservative since only the Delta smelt restrictions were considered, and modeling assumptions tended to underestimate supply impacts. Other equally problematic restrictions could soon be in place for salmon, longfin smelt and other native Delta fish. As a result, total economic and water supply implications would likely be even more severe in the future.

“The export restrictions imposed in a effort to conserve the Delta smelt clearly add significant new risks to California’s water supply system, said Dr. David Sunding, author of the study and a professor of agricultural and resource economics at UC Berkeley. The water pumping restrictions not only worsen the current drought, they also ensure that water rationing, fallowed farm land and economic dislocation will be the norm. The study highlights the unsustainable nature of the state’s current water system. Rather than a series of court-imposed restrictions aimed at individual species, California would benefit from a more comprehensive fix for the delta.”

Specific water supply and economic impacts include, but are not limited to the following:

— Pumping restrictions, such as those resulting from the Wanger Interim Order, significantly reduce the reliability of water deliveries from both the State Water Project (SWP) and Central Valley Project (CVP).
— For both the SWP and CVP, supply reductions are greatest in years with near average water supplies greatly impacting water storage and groundwater replenishment efforts.
-SWP impacts average 414 thousand acre-feet (TAF)/yr or roughly the amount of water needed to serve over 3 million residents. Impacts would be as high as 700 TAF/yr in “above average” years.
-CVP impacts average 170 TAF/yr but exceed 263 TAF/yr in “above average” years.
— Statewide economic impacts average over $500 million annually with most of that impact in the San Joaquin Valley and Southern California. Economic impacts will be much greater in drought conditions.
— Annual economic losses could soar in excess of $3 billion should the state enter a prolonged dry period, such as the one experienced from 1987-1992.

“The economic and water supply impacts of court imposed water supply restrictions are very sobering,” said Michael Boccadoro, spokesperson for the Coalition for a Sustainable Delta. “The study underscores the need to make sure we get the science correct before more restrictions are imposed. Environmental activists are playing a very dangerous game with the state’s economy and the livelihoods of the state’s residents as they seek additional restrictions.”

Environmental and sportfishing groups last week filed suit to force the complete and total shutdown of delta water pumping operations.

The study was prepared by Berkeley Economic Consulting, under the direction of Dr. David Sunding, a well known and respected University of California professor of Agricultural and Resource Economics at Berkeley.

Questions about the study can be directed to Dr. Sunding directly at 415-299-2653. All other inquiries should be directed to Mr. Boccadoro at the numbers listed below.

For more information or a copy of the full report, visit http://www.sustainabledelta.com/

The Coalition for a Sustainable Delta is an ad hoc group of water users who depend on conveyance through the delta for a large portion of their water supplies. The Coalition is dedicated to protecting the delta and is committed to promoting a strategy to ensure its sustainability.

Feinstein: Delay new water restrictions for fish

Posted by: Aqua Blog Maven on December 11, 2008 at 6:52 am

From Mike Taugher of the Contra Costa Times, published in the San Jose Mercury News:

Sen. Dianne Feinstein is seeking a delay in a long-anticipated permit, due Monday, that will dictate how much water is available to Californians and how part of the Delta environment will be protected. The request, sent in a letter to Interior Secretary Dirk Kempthorne, comes as the specter of a potentially severe drought looms over a state that has weathered two dry years in a row and is facing dry conditions so far heading into 2009.

A delay is needed to “minimize the potentially devastating economic impacts to my State from significant further cutbacks to our water supply,” Feinstein wrote in the Dec. 5 letter. She warned of widespread water rationing, steep economic costs and job losses.

At issue is a permit meant to protect a tiny fish, Delta smelt. U.S. District Judge Oliver Wanger last year threw out the existing permit after concluding it was not strict enough to prevent the fish from going extinct.

Wanger ordered a replacement permit by Dec. 15 and a near-final draft was delivered last month to state and federal water agencies.

Feinstein asked Kempthorne to seek a delay from the court so it could be melded with another permit to protect salmon. Both are being rewritten because their conditions were ruled insufficient to prevent extinctions.

Read more from the San Jose Mercury News by clicking here.

Commentary: Delta water plan is key to California’s future

Posted by: Aqua Blog Maven on December 4, 2008 at 8:14 am

From the Sacramento Bee, this commentary by Tom Zuckerman, special projects manager of the Central Delta Water Agency:

This month, the U.S. Fish and Wildlife Service will release a draft plan to protect the endangered Delta smelt, which lives only in the Sacramento-San Joaqin River Delta. Last year, a court order to protect the smelt drew protests from water users south of the Delta who are concerned about their water supply. We sympathize, because we also understand the importance of water.

We represent, respectively, farmers in the Delta and California’s commercial salmon fishermen. Our communities depend on water. Healthy rivers produce healthy salmon runs, sustaining fishermen, their families and fishing communities. Delta farmers also depend on healthy rivers.

When others divert too much water from the ecosystem, Delta farmers find their crops damaged by salty water intruding from the bay and the salty San Joaquin River drainage discharges that collect in the South Delta, as a result of the operation of the export pumps.

For the past five decades, we have seen steady increases in the amount of water pumped from the Delta – to record levels in recent years. Today, as a direct result, the entire Delta ecosystem is collapsing. In addition to the smelt, some salmon runs, steelhead, sturgeon and other fish are threatened by extinction.

This damage is no surprise. The massive pumps in the Delta divert more water than is pumped at any single location in the nation.

Delta smelt closer to extinction

Posted by: Aqua Blog Maven on December 1, 2008 at 5:59 am

From KGO, ABC 7, San Francisco:

There is more bad news for the bellwether of the Sacramento Delta. The Delta smelt continue to edge closer to extinction. It is not good news for environmentalists or for the farmers and Southern Californians who count on the Delta for water. ABC7 News went along for this season’s fish count.

The California Department of Fish and Game has been casting nets in the Delta for the last couple of weeks. It is not so much about what they catch, as what they don’t.

Since 1967, biologists have searched the murky waters of the Delta looking for what is left of the once thriving fish populations. They take detailed notes on everything, from what they catch, where they catch it, to the temperature of the water.

“We sample from San Pablo Bay up to the lower Sacramento River and through the San Joaquin,” said Dave Contreas with the California Department of Fish and Game.

But again, the number of fish the department catches is extremely small. “What we started noticing were downward trends particularly at the start of 2000, 2001,” said Contreas.

Read more or watch the video from KGO ABC 7 by clicking here.

Stop handing Delta water rules to activists, says editorial

Posted by: Aqua Blog Maven on November 27, 2008 at 10:48 am

From the San Diego Union-Tribune, this editorial, which begins by reviewing the restrictions placed on Delta water exports due to the Delta smelt and now the longfin smelt:

… the impact on smelt of the restrictions so far? Zero. In the last five years, eight smelt were caught in the pumps. The regulations have saved none. Others suspect other culprits in the smelt’s decline, such as pollutants, invasive species and drought.

Only the pumps, however, offer the huge, adverse impacts on the water supply for 25 million residents.

Just how adverse is that impact? Between increasingly onerous smelt rules and continuing drought, the state Department of Water Resources projects that in 2009 wholesale water agencies may get as little as 15 percent of the water they need. Even record snowmelt in the Rockies won’t help, since the State Water Project can’t deliver it.

What would help? A new official attitude that comes right out of a state Supreme Court ruling and recognizes, as Director Don Koch of the Department of Fish and Game put it, “the importance of various agencies’ responsibilities to protect both humans and fish.”

Also at work is the Bay Delta Conservation Plan, a move to address all possible hazards to Delta wildlife’s overall health, including a system to convey water for people around instead of through the Delta. A sizable coalition led by Sen. Dianne Feinstein, Gov. Arnold Schwarzenegger, and water and wildlife agencies will run up against the activists and their strident opposition to the dual duty for the Delta.

At least 25 million Californians north and south have all the reason they need to encourage the success of the coalition’s efforts.

Read the full text of this editorial from the San Diego Union-Tribune by clicking here.

Supporters of delta smelt lose legal bid to cancel water deals

Posted by: Aqua Blog Maven on November 20, 2008 at 7:23 am

From the Fresno Bee:

A federal judge on Wednesday rejected a request by environmentalists that could have slowed the flow of water from the Sacramento-San Joaquin Delta to agricultural interests to the south. The 92-page ruling by U.S. District Judge Oliver Wanger is the latest in a case involving the tiny delta smelt, which environmentalists say is facing extinction largely because of reduced water coming into the delta, and from increased pumping.

The environmentalists wanted Wanger to cancel long-term contracts for more than a dozen west-side water districts that get water from the delta. But Wanger’s ruling said that it would be pointless to renegotiate the contracts to help the smelt, because the U.S. Bureau of Reclamation already has the ability to stop water deliveries to the affected districts to satisfy requirements of the Endangered Species Act.

The districts — which include the James Irrigation District, centered on the town of San Joaquin, and the adjacent Tranquillity Irrigation District — said Wanger’s ruling gives them a sense of stability.

It also likely sets a legal precedent for nearby water districts with similar contracts that the environmentalists didn’t challenge. That includes the massive Westlands Water District on the Valley’s west side.

Read more from the Fresno Bee by clicking here.

Environmental laws wedge state into hydrological corner, says commentary

Posted by: Aqua Blog Maven on September 23, 2008 at 6:40 am

From the Modesto Bee, commentary by George Radanovich and Jim Costa on the recent proposal in Congress to suspend the Endangered Species Act in times of drought. Citing the 900,000 acre-feet of water lost to the ocean this year due to the Wanger smelt decision, they write:

One of the main problems is the Endangered Species Act and its lack of flexibility in light of the drastic impact of its mandates on the economy of an entire state, and, most importantly, on human beings and their livelihoods. The immediate solution on this front is the bipartisan legislation that we introduced last week with other members of the California delegation. The California Drought Alleviation Act gives the secretary of the interior the ability to temporarily exempt the delta pumps from the ESA during times of extreme water shortage — such as now — in order to fill reservoirs to provide for agriculture and urban use.

Additionally, the CDAA protects the delta smelt by ordering the secretary of the interior to work in cooperation with the state Department of Fish and Game to develop a “conservation fishery” with the goal of preserving the smelt until we learn more about what is harming the population and how to best preserve it.

Californians are tired of the divisive politics of water. No longer can they afford political gamesmanship on an issue of such far-reaching importance. They need a consistent water supply to provide for their families, sustain jobs, fuel our economy and continue California’s tradition as the breadbasket of this country.

Congress needs to pass the CDAA, temporarily suspend the ESA and allow the delta pumping stations to store water in the San Luis Reservoir and prepare California for what could be a devastating 2009 for agriculture and urban water users.

We are ready and willing to continue to work toward a long-term solution to California’s water needs, but in the meantime we cannot afford to let our state dry up and blow away simply for the sake of protecting a few small fish.

Read the full text of this commentary in the Modesto Bee by clicking here.

Smelt threaten irrigation projects; Lawsuit could junk scores of valley water contracts

Posted by: Aqua Blog Maven on September 19, 2008 at 6:05 am

From the Capital Ag Press:

Contracts for 42 irrigation districts that rely on Central Valley Project water could be tossed because of the tiny delta smelt.

U.S. District Court Judge Oliver Wanger heard arguments late last week over whether to require the Central Valley Project to rewrite the contracts because each was based off a flawed ruling that the water promised to both farmers and urban dwellers would not harm the endangered fish.

Delta smelt are considered to be the bellwether species in the estuary, which forms the hub of California’s water system – and smelt numbers have been crashing for several years. Water exports are one of several causes of the smelt’s decline and environmentalists have been suing various state and federal agencies to restrict water flows from the Sacramento-San Joaquin River Delta.

Should the contracts be invalidated, it would likely mean that farmers would get less water and on a different schedule than they receive now. How much less and on what sort of delivery schedule would be up to the individual districts as well as the federal government – and the smelt.

The U.S. Fish and Wildlife Service is in the midst of rewriting the biological opinion concerning the smelt. The degree of damage a new series of water contracts could do to the Central Valley farming community will hinge on how much water government scientists say the smelt need.

Read more from the Capital Ag Press by clicking here.

Smelt again at center of water conflict; Environmentalists want 3 dozen contracts canceled or reworked, threatening operation of CVP

Posted by: Aqua Blog Maven on September 12, 2008 at 6:39 am

From the Fresno Bee:

Environmentalists want the federal government to cancel or renegotiate more than three dozen long-term water contracts in the Central Valley because they say they were drawn up using flawed data. If the request is approved by U.S. District Judge Oliver Wanger, agricultural users both north and south of the Sacramento-San Joaquin Delta say it would likely mean less water for them.

Some say the environmentalists’ request has the potential to turn the state’s intricately woven water world upside down. That’s because some Sacramento River users say that if there’s no federal contract, they should be able to reassert their longtime state water rights — a claim that could devastate the Westlands Water District and even hurt the Friant Water Users Authority and other San Joaquin River water users.

Wanger today will hear arguments in his Fresno courtroom on the request to cancel water contracts in a case involving the tiny delta smelt, which environmentalists say is facing extinction. They say the population decline is driven largely by reduced water coming into the delta, and also because increased pumping for users south of the delta has helped wreck critical spawning areas and is damaging the smelt’s overall habitat.

Environmentalists say they aren’t seeking to stop water deliveries; they want the new contracts to be based on the new biological opinion when it is issued. But this could have dramatic affects on the Central Valley Project:

More potentially explosive, some say, is language in a legal brief on the contract issue filed by 22 Sacramento River settlement contractors — water users who had used Sacramento River water before the federal Central Valley Project was constructed beginning in the late 1930s.

These users say in court filings that if there are no valid federal contracts — as environmentalists want — then they would revert to using water under those pre-existing rights, and the U.S. Bureau of Reclamation’s “ability to operate the CVP would be severely compromised.” That in turn could affect users south of the delta whose supply originates in the state’s far north.

Get the whole story from the Fresno Bee by clicking here.

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