Pacific Legal Foundation files Ninth Circuit delta smelt brief

Posted by: Aqua Blog Maven on July 18, 2010 at 6:54 am

From the Pacific Legal Foundation’s Liberty Blog:

“Yesterday we filed our opening brief in the Ninth Circuit delta smelt Commerce Clause appeal, arguing that the U.S. Fish and Wildlife Service’s decision to restrict water deliveries on behalf of the delta smelt is unconstitutional. For a copy of the brief, go here.“

July 18, 2010 · Filed Under Delta smelt

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PLF’s Liberty Blog: Elena Kagan and the delta smelt

Posted by: Aqua Blog Maven on June 30, 2010 at 7:49 am

From the Pacific Legal Foundation’s Liberty Blog:

“Folks are concerned about Elena Kagan’s response (or lack thereof) to Sen. Tom Coburn’s questions about Commerce Clause jurisprudence. And rightly so. (Video of Kagan’s remarks available on the click through).

The government that is regulating a noncommercial fish is the same government that will dictate your nutrition. That is why PLF’s Commerce Clause appeal against the delta smelt regulations is so important — not only for those who have been devastated by the regulatory drought, but for all those who believe that our federal government has limited powers. … “

Kagan’s remarks and more commentary at the Liberty Blog by clicking here.

June 30, 2010 · Filed Under Delta smelt

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Thursday’s top of the scroll: Short term compromise reached in Delta smelt protections; Both sides claim victory in water compromise

Posted by: Aqua Blog Maven on June 24, 2010 at 7:52 am

From the Fresno Bee:

“Water users have reached a short-term compromise with environmentalists and their federal government allies on Sacramento-San Joaquin Delta pumping levels that face potential cutbacks to protect the threatened delta smelt.

Even as they compromised, however, both sides claimed victory.

A management plan for the smelt — known as a biological opinion — regulate delta pumping levels by setting a range of water flows in parts of the San Joaquin River known as the Old and Middle rivers. The compromise permits the pumping of the maximum amount of water allowed by the biological opinion, which pleased water users. But it also keeps the biological opinion in place and doesn’t allow pumping at levels higher than those set forth in the plan, which satisfied environmentalists. … “

Continue reading from the Fresno Bee by clicking here.

From the Central Valley Times:

” … Under the terms of the negotiated agreement by the water users and environmental groups:

• The two huge irrigation systems in California — the federal Central Valley Project and the state-owned State Water Project — jointly will conduct pumping operations that maintain the Old and Middle River (OMR) flows so as not to be more negative than -5,000 cubic feet per second.

• The U.S. Fish and Wildlife Service may require reduced pumping operations in order to maintain OMR flows less negative than -5,000 cubic feet per second if the numbers of smelt harmed at the pumps exceeds agreed upon levels or if trends of smelt salvaged at the pumps show an imminent threat to the species.

• If information shows a rising daily trend in smelt kills that results in an imminent threat to the species or if a daily kill event at the CVP’s Jones Pumping Facilities results in an imminent threat to the species, then the Fish and Wildlife Service may require a reduction in OMR flow in order to avoid such an imminent threat to the species. “

Read the full text at the Central Valley Business Times by clicking here.

MORE COVERAGE:

Compromise reached over Calif pumping limits, from the Associated Press
Delta pumping, Smelt protection agreement reached, from ACWA’s Water News
Department of Interior press release, includes links to the agreement (click or read next story below)

June 24, 2010 · Filed Under Delta Issues, Delta smelt

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Department of Interior, California, water users and environmental groups reach agreement on CVP operational plan protections for imperiled Delta smelt

Posted by: Aqua Blog Maven on June 24, 2010 at 7:38 am

“Secretary of the Interior Ken Salazar today announced that agreement has been reached among all parties involved on an order to be in effect for the remainder of the month in a pending court challenge to the Fish and Wildlife Service biological opinion on the delta smelt. The U.S. Department of the Interior, the California Department of Water Resources, water users and environmental groups reached consensus on operations of the Central Valley Project (CVP) and the State Water Project (SVP) that will provide protection to the smelt and preserve the projects’ ability to export water to urban and agricultural water users.

Although the settlement does not resolve the underlying challenge to the biological opinion, it marks a step toward reducing the level of conflict among the parties. “It was not so long ago that this level of cooperation among these parties would not have been possible, and I commend everyone for their hard work and perseverance in reaching this agreement,” said Secretary Salazar. “As we develop the long term solutions to California’s water challenges, I look forward to working with the congressional delegation and all stakeholders to find ways to improve reliability of water deliveries throughout California while also improving environmental conditions in the Delta.”

The opportunity for consensus arose after the U.S. District Court in Fresno issued a decision on May 27, 2010, finding that the irrigators were likely to succeed in their challenge to FWS’s biological opinion. Rather than holding hearings regarding an injunction, the court granted the parties’ request to attempt to negotiate an appropriate agreement.

Under the terms of the negotiated agreement, for the remainder of June:

* The CVP and the SWP jointly will conduct pumping operations that maintain the Old and Middle River (OMR) flows so as not to be more negative than -5,000 cubic feet per second (cfs).
* The FWS may require reduced pumping operations in order to maintain OMR flows less negative than -5,000 cfs if the numbers of smelt harmed (salvaged) at the pumps exceeds agreed upon levels or if trends of smelt salvaged at the pumps show an imminent threat to the species.

As of July 1, all pumping restrictions required under the smelt biological opinion cease.

Hearings on the challenge to the substance of the biological opinion are scheduled for July 8 and 9.

For more information on the agreement, please click here.”

June 24, 2010 · Filed Under Delta Issues, Delta smelt

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Attorney, professor debate protection of smelt fish

Posted by: Aqua Blog Maven on June 18, 2010 at 8:51 am

From the Capital Press:

“The Pacific Legal Foundation hopes the Ninth Circuit Court of Appeals will declare federal protections for California’s Delta smelt unconstitutional.

Pacific Legal Foundation attorney Damien Schiff, in a June 14 debate in Sacramento staged by the conservative Federalist Society, laid out his case, to be argued before the federal Ninth Circuit Court of Appeals later this year.

The fish exists only in the Sacramento-San Joaquin Delta, and has no commercial value, Schiff said. Therefore the feds cannot regulate it under the Constitution’s interstate-commerce provisions, which have formed the basis of the ESA’s constitutionality. … “

Continue reading from the Capital Press by clicking here.

Here’s how the Pacific Legal Foundation covered it:

“Federal Endangered Species Act regulations to help the Delta smelt have led to dramatic and economically crippling cuts in water pumping to the San Joaquin Valley and Southern California.

Are those regulations unconstitutional?

That was the topic of a debate this week between PLF attorney Damien M. Schiff and Richard Frank, an environmental law specialist at UC Berkeley School of Law.

The function was held at the California Chamber of Commerce headquarters in Sacramento, and sponsored by the Sacramento chapter of the Federalist Society.

PLF’s lawsuit argues that federal regulations for the Delta smelt exceed federal authority to regulate “interstate commerce,” because the smelt exists in only one state—California—and is not bought or sold in commerce. … “

Watch video of the debate by clicking here.

June 18, 2010 · Filed Under Delta smelt

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Event/Debate June 14: Are feds’ water cutoffs to help Delta smelt unconstitutional?

Posted by: Aqua Blog Maven on June 11, 2010 at 6:32 am

From the Pacific Legal Foundation:

“You are invited to a DEBATE on Monday, June 14, in Sacramento:

“Fish, farmers and the Constitution: Are the feds’ regulations to help the Delta smelt unconstitutional?”

This debate is sponsored by the Federalist Society of Sacramento, the Presiding Justice Robert K. Puglia Chapter.

Federal Endangered Species Act regulations to help the Delta smelt have led to dramatic cuts in water pumping to the San Joaquin Valley and Southern California. Are those regulations unconstitutional?

DAMIEN M. SCHIFF, an attorney with Pacific Legal Foundation, and lead lawyer in PLF’s lawsuit against the Delta smelt regulations, will argue that the regulations are unconstitutional, violating Commerce Clause limits on federal power.

RICHARD FRANK, environmental law specialist on the faculty of UC Berkeley School of Law (Boalt Hall), will argue in favor of federal authority to issue regulations to protect Delta smelt.

Where: California Chamber of Commerce, 1215 K St., 14th Floor, Sacramento, CA 95814.

When: Monday, June 14, Noon to 1:30. THIS EVENT IS FREE OF CHARGE.

More information, or to RSVP, contact Patty Lee at pml@pacificlegal.org, (916) 419-7111.”

June 11, 2010 · Filed Under Delta smelt

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Pacific Legal Foundation: Favorable ruling in the Delta smelt case

Posted by: Aqua Blog Maven on May 28, 2010 at 2:22 pm

From the Pacific Legal Foundation’s Liberty Blog:

“Yesterday evening, the court issued its ruling on the preliminary injunction motion filed in the Delta smelt consolidated cases. Below is a quick resume of the decision. Bottom line, however, is that the cutbacks are illegal, but the court is not yet prepared to order immediate relief.

1. The baseline issue. To determine whether a proposed action will jeopardize the continued existence of a listed species, the Fish and Wildlife Service must identify the environmental baseline, i.e., the way the world looks without the project. Once that’s been determined, the Service can then analyze the effects of the project. In the Delta smelt cases, the plaintiffs argued that the Service misused computer modelling programs to determine what the Sacramento Delta would look like without the water projects operating. On this argument, Judge Wanger sided in favor of the defendants.

“This highly technical dispute was not raised before the agency, and there were legitimate concerns about comparing Calsim modeling runs to other Calsim runs. This choice of competing methodologies is not sufficiently clear error to justify the court’s intervention.

2. Other stressors. … “

May 28, 2010 · Filed Under Delta smelt

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Friday’s top of the scroll: Wanger issues similar ruling for Delta smelt

Posted by: Aqua Blog Maven on May 28, 2010 at 8:40 am

From the Fresno Bee:

“For the second time in nine days, a federal judge in Fresno has handed a victory to urban and agricultural water users who are seeking to increase pumping levels in the Sacramento-San Joaquin Delta.

Released late Thursday, U.S. District Judge Oliver W. Wanger’s 126-page decision involving the threatened delta smelt has many similarities to one issued last week on endangered salmon.

As in the salmon ruling, Wanger found that water officials must consider humans along with the delta smelt in limiting use of the delta for irrigation.

He also found that water users made convincing arguments that the federal government’s science didn’t prove that increased pumping from the delta imperiled the smelt.

Tom Birmingham, general manager of the Westlands Water District — which is deeply dependent on delta water — said that after the court’s finding related to the salmon management plan, he was “not surprised the court concluded the smelt [plan] suffers from the same defects.” … “

Continue reading from the Fresno Bee by clicking here.

From the Silicon Valley Mercury News:

” … In particular, Wanger said the U.S. Fish and Wildlife Service failed to take into account the size of the smelt population when it concluded how damaging pumping rates are to the fish.

Still, the judge expressed strong reservations about relaxing the pumping restrictions because of widespread agreement that pumping rates are harmful and because the Delta smelt are close to extinction.

A lawyer for an environmental group defending the restriction in court said he was disappointed.

“Ultimately, we believe that the science behind the biological opinions will be vindicated, and in the interim, we hope that the Court’s rulings won’t drive these species even closer to extinction,” said Doug Obegi, an attorney for the Natural Resources Defense Council. … “

Continue reading from the Silicon Valley Mercury News by clicking here.

May 28, 2010 · Filed Under Delta smelt

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Saturday’s top of scroll: U. S. Fish & Wildlife Service finds uplisting of Delta smelt from threatened to endangered under Endangered Species Act “warranted but precluded”

Posted by: Aqua Blog Maven on April 3, 2010 at 8:51 am

From the Central Valley Business Times:

“The Delta smelt, a minnow-like fish that lives only in the Sacramento-San Joaquin Delta, but is often in courtrooms, could be listed as “endangered” under federal law, says the U.S. Fish and Wildlife Service.

But the agency says it cannot elevate the status of the fish from its current “threatened” level.

Based on accumulated scientific data, the delta smelt warrants uplisting from under the Endangered Species Act but that is precluded by the need to address higher priority species first, the FWS says Friday.

The Service will develop a proposed rule to reclassify this species as priorities allow, it says.

The finding of “warranted but precluded” will have no practical effect on protections for the delta smelt, existing federal actions, or water flows in the delta smelt habitat, it says. … “

Continue reading this article from the Central Valley Business Times by clicking here.

Read the press release from the U. S. Fish and Wildlife Service by clicking here.

April 3, 2010 · Filed Under Delta smelt

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Rev ‘em up: With delta smelt moved, pumps are a go, plus a guide to smelt terminology

Posted by: Aqua Blog Maven on February 19, 2010 at 8:51 am

From the Los Angeles Times Greenspace blog:

“The delta smelt have moved, allowing water managers to turn up — at least for now — the federal pumps that draw water from the Sacramento-San Joaquin River Delta.

Only one smelt has been killed at the pumps in the south delta since Feb. 10, and biologists say most of the smelt are in the north delta now, reducing chances that they will be sucked into the pumps. … “

SMELT EXTRA: X2? Turbidity? PEI? Read all about smelt terminology from Infospigot by clicking here.

February 19, 2010 · Filed Under Delta smelt

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Dan Bacher: Judge Wanger denies TRO in Delta smelt case

Posted by: Aqua Blog Maven on February 11, 2010 at 8:34 am

From Dan Bacher, this commentary:

“Thanks to the efforts of attorneys from NRDC, EarthJustice and the federal government, the request by Westlands Water District and other water agencies for a temporary restraining order (TRO) of Old and Middle River (OMR) flow restrictions necessary to protect Delta smelt was denied today (Wednesday) by Federal Judge Oliver Wanger in Fresno.

“OMR flows are a measure of whether the San Joaquin is flowing towards the sea or towards the Delta pumps,” said Jonathan Rosenfield, Ph.D. Conservation Biologist with the Bay Institute and president of the Salmon Aid Festival (http://www.salmonaid.org). “Thus, those restrictions go into effect (OMR (reverse) flows limited to -4,000 cfs).

Giving new definition to “ironic,” the Delta smelt flow restrictions were triggered by recent high entrainment of Delta smelt in the Delta pumps that followed Wanger’s suspension of OMR flow restrictions. … “

February 11, 2010 · Filed Under Delta smelt

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Wednesday’s top of the scroll: Feds reduce Calif. water pumping to protect fish; Request for TRO filed

Posted by: Aqua Blog Maven on February 10, 2010 at 8:33 am

From the Fresno Bee:

“The federal government said Tuesday it will reduce pumping in the delta this week because a threatened fish could be killed by the equipment, a decision that follows two years of limited deliveries that left fallowed fields across the Central Valley.

The U.S. Bureau of Reclamation intends to shut off one of its five pumps beginning Thursday because adult delta smelt swam into the area, said bureau spokesman Pete Lucero.

The restrictions to protect the smelt, a finger-sized fish, primarily affect Central Valley farmers and could last until June 30.

The federal government had been pumping at full capacity since Saturday. That was the day after a federal court judge lifted separate federal pumping restrictions that had been in place to protect salmon. … “

Pumps on, pumps off, it’s hard to keep track … Alex Brietler has more on the action:

” … The pumping shutdown will begin after 5 p.m. Wednesday, according to court documents filed by Ignacia S. Moreno, U.S. assistant attorney general.

This is “necessary for the Central Valley Project and State Water Project operations to avoid jeopardizing the continued existence of the delta smelt and adversely modifying its critical habitat,” the document says.

Attorneys for the water users promptly requested a restraining order and asked that a hearing be held in Judge Wanger’s courtroom on Wednesday. The water users say they are in “immediate danger of irreparable harm.” Their request says that less than one week ago, a U.S. Fish and Wildlife attorney told the court that the smelt had turned left into the north part of the Delta and were out of the influence of the south-Delta pumps. … “

Read this post from Alex Brietler on his blog by clicking here.

But if you really want lots of details, check out this post from the Bay-Delta blog:

” … on February 8, Fish and Wildlife determined that negative OMR flows had to be reduced anyway — but now it was to protect the delta smelt, in accordance with Fish and Wildlife’s own biological opinion. FWS issued a 48-hour Notice of Implementation that would take effect by 5:00 p.m. on February 10, thereby reducing Delta pumping activity in spite of February 5 TRO.

But of course the story cannot end there. For unless Wanger also enjoins implementation of the FWS BiOp as he did the NMFS BiOp, Westlands and other contractors will have substantially lost out on the benefit of their favorable February 5 ruling — particularly because SLDMWA has the option of extending the 14-day TRO for an additional 14 days, if it could show that the extension would not jeopardize fish or critical habitat. And sure enough, SLDMWA has indeed filed a motion for a TRO against the FWS BiOp (PDF), specifically the part of the RPA that Fish and Wildlife plans to implement (Component 1, Action 2). This is actually the second time the contractors have sought a TRO against this BiOp, but it was denied the first time because Component 1 had not actually been implemented. Now that FWS has given notice that Component 1 will be implemented after 5:00 p.m. on February 10, the contractors will take another crack at it. … “

Read this post from the Bay-Delta blog by clicking here.

This story’s changing fast, so stay tuned… I’ll try and post any developments today as promptly as I can….

February 10, 2010 · Filed Under Delta smelt

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This just in … New delta pumping cutbacks proposed

Posted by: Aqua Blog Maven on February 9, 2010 at 2:22 pm

From the Fresno Bee:

“The federal government today proposed a new set of water pumping restrictions in the Sacramento-San Joaquin Delta, just four days after west-side farmers hailed a court ruling that temporarily halted a similar cutback.

The latest restrictions are being triggered by the endangered delta smelt, which are now being found near the massive delta pumps that send water to west-side agriculture and to millions of urban users from the East Bay to Southern California.

On Friday, U.S. District Judge Oliver W. Wanger put a two-week hold on pumping restrictions that are part of a controversial management plan for endangered winter-run salmon.

Now, the coalition of agricultural and urban water users that sought the temporary hold for the salmon will seek a similar order for the smelt. Wanger has scheduled a hearing on their request for Wednesday. … “

Here’s the document requesting the Temporary Restraining Order, courtesy of ag leader’s twitter feed.

February 9, 2010 · Filed Under Delta smelt

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Bay-Delta blog: Here come the Delta smelt restrictions

Posted by: Aqua Blog Maven on February 9, 2010 at 8:46 am

The Bay-Delta blog notes that while Judge Wanger may have issued a temporary restraining order for implementing the salmon bi-op, he did not do so for the Delta smelt bi-op:

” … a parallel process has been playing out with the delta smelt. The 2008 BiOp for the pelagic delta smelt was prepared by the U.S. Fish & Wildlife Service. Both BiOps issued jeopardy determinations and include reasonable and prudent alternatives (RPAs). The RPAs describe the action items that should be carried out to preserve species listed under the Endangered Species Act.

Fish & Wildlife has announced the need to implement one of these RPA measures, and just issued a 48-hour Notice of Implementation (PDF) to that effect. In particular, FWS plans to implement Component 1, Action 2 of the RPA after 5:00 p.m. on February 10, 2010.

The trigger for this action is that FWS has observed an uptick in the salvage of delta smelt. The negative Old & Middle River (OMR) flows may be decreased to protect the fish. Reduction measures of this sort are generally disliked by Westlands Water District because they restrict pumping and result in decreased exports from the Delta. … “

Continue reading this post from the Bay-Delta blog by clicking here.

February 9, 2010 · Filed Under Delta smelt

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Kate Poole rebuttal to Pacific Legal Foundation: The law is powerful protection against erratic political winds

Posted by: Aqua Blog Maven on January 28, 2010 at 8:51 am

From Kate Poole at the NRDC Switchboard blog:

“In his January 25th post, an attorney for the ultra-right wing Pacific Legal Foundation accused my colleague of ignoring the Constitution, claiming that the water cutbacks to protect California’s threatened native fish are “devoid of constitutional authority.” Interesting thought – but one that has been rejected by every federal court that has heard this refrain from PLF before, and there have been many.

While PLF tries to cloak its arguments in constitutional armor (who’s not for the Constitution?), their efforts to attack protections for the crashing Bay-Delta estuary would, in fact, radically undermine longstanding constitutional protections, statutory law (laws made by our elected representatives in Congress), and precedent (law as interpreted by numerous judges over time). Not only do their arguments lack foundation in fact, but they lack grounding in the law.

PLF argues that “the U.S. Fish and Wildlife Service has no business involving itself with a fish that has no connection to interstate commerce.” The sheer irony of this statement is astounding from an organization that claims that these same fish are causing economic havoc on the entire nation’s food supply that “go[es] far beyond California.” … “

Continue reading this rebuttal commentary from Kate Poole at the NRDC Switchboard blog by clicking here.

January 28, 2010 · Filed Under Delta smelt, Water & Wildlife

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Delta smelt rules face new challenge in court

Posted by: Aqua Blog Maven on January 26, 2010 at 8:30 am

From the Fresno Bee:

“SACRAMENTO — Already thwarted by a Fresno judge, a conservative legal organization is pressing its case that federal rules to protect delta smelt are unconstitutional.

In an appeal filed Monday in the 9th U.S. Circuit Court of Appeals in San Francisco on behalf of Valley farms, the Pacific Legal Foundation argues that the government cannot enact the regulations because smelt are not involved in interstate commerce. … “

January 26, 2010 · Filed Under Delta smelt

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Pacific Legal Foundation asks ninth circuit to strike down Delta smelt regulations that worsen drought

Posted by: Aqua Blog Maven on January 26, 2010 at 8:28 am

From the Pacific Legal Foundation:

“In an appeal filed today by attorneys with Pacific Legal Foundation, the U.S. Ninth Circuit Court of Appeals is being asked to strike down federal Delta smelt regulations that have led to devastating cutbacks on water pumping from the Delta to the San Joaquin Valley and Southern California. The pumping reductions amount to a “regulatory drought” that exacerbates the water shortages that are already plaguing much of the state, according to PLF. The case is Stewart & Jasper Orchards, et. al. v. Salazar.

Pacific Legal Foundation is the nation’s leading litigator for property rights and a balanced approach to environmental regulations. In the Delta smelt litigation, PLF attorneys represent three San Joaquin Valley farmers who have been hard hit by the water cutbacks caused by federal Delta smelt regulations.

The pumping cutbacks, which are idling farmland, driving up unemployment, reducing our safe food supply, and raising water rates, have been imposed as part of a plan to help the Delta smelt, which is designated as “threatened” under the federal Endangered Species Act (ESA). But PLF’s lawsuit says the federal government had no constitutional authority to put the Delta smelt on the ESA list, and therefore federal officials are barred from ordering pumping cutbacks as part of a regulatory scheme for the Delta smelt.

“We are asking the Ninth Circuit to put the brakes on out-of-control federal bureaucracies that are depriving farms and communities of the most vital resource – water,” said PLF Attorney Damien Schiff. “The court should reassert basic constitutional restraints on federal power. The Delta smelt has no role in interstate commerce, so federal regulators have no authority to issue any edicts about the Delta smelt, let alone draconian water-pumping reductions that threaten our economy and our food security.” … “

January 26, 2010 · Filed Under Delta smelt

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Delta smelt regulations being appealed

Posted by: Aqua Blog Maven on January 25, 2010 at 8:15 am

From Fresno’s Channel 30 KFSN:

” … On Monday, Pacific Legal Foundation, a firm representing farmers like Ferguson, will file an appeal to the ninth circuit court, challenging federal Delta Smelt regulations.

The announcement was made at a press conference Sunday on the UC-Davis campus, where the National Academy of Sciences panel is meeting this week to discuss the scientific basis behind those regulations.

“We are going to be asking in our appeal to the ninth circuit that these restrictions be eliminated because they are not just bad, they are not just inhumane, but they’re unconstitutional.”

While Ferguson and others on the West Side remain hopeful, environmentalists say a new law suit won’t change rules that are already in place.

“This side that’s filing the lawsuit, you know they just don’t want to recognize that the delta estuary and its fish are important. They want to take every last drop if they could.” … “

January 25, 2010 · Filed Under Delta smelt

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PLF asks Ninth Circuit to invalidate delta smelt restrictions

Posted by: Aqua Blog Maven on January 25, 2010 at 8:13 am

From the Pacific Legal Foundation’s Liberty Blog:

“Today, Pacific Legal Foundation attorneys will file an appeal to the Ninth Circuit, asking the court to invalidate the U.S. Fish and Wildlife Service’s delta smelt water cutbacks as unconstitutional. The appeal will be filed not only on behalf of PLF’s farming clients (Stewart & Jasper Orchards, Arroyo Farms, and King Pistachio Grove), but also on behalf of everyone in the San Joaquin Valley and Southern California who are suffering as a result of the regulatory drought.

The government’s delta smelt water cutbacks are just the latest example of the Endangered Species Act being used to put fish and other animal species ahead of people. But no matter the draconian and unnecessary power of this law, the Endangered Species Act does not trump the U.S. Constitution. … “

January 25, 2010 · Filed Under Delta smelt

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Family Farm Alliance: Scrambling for cover on smelt – Federal fish agency refuses to answer any questions

Posted by: Aqua Blog Maven on January 13, 2010 at 8:52 am

From Earth Times:

“FRESNO, Calif. – (Business Wire) The U.S. Fish and Wildlife Service (FWS) rules cutting off water deliveries to protect the delta smelt have cost California tens of thousands of jobs and billions of dollars in ruined crops and fallowed fields. Those restrictions aren’t helping the smelt; recent surveys show their numbers continue to fall. And now the agency is refusing to answer questions about whether there was any scientific basis for those restrictions in the first place.

As a result, the Family Farm Alliance announced today that it is seeking an order from the court to compel the agency to follow its own regulations: http://familyfarmalliance.clubwizard.com/IMUpload/Microsoft%20Word%20-%20Salazar%20Ltr%20Final%2010%20January%202010.doc.pdf

“The court has already determined that FWS violated the National Environmental Policy Act by adopting these restrictions without conducting an environmental impact analysis of the extraordinary harm they are doing to other endangered species and to the human environment,” said Dan Keppen, Executive Director of the Alliance. “The agency has twice failed to perform the kind of independent review of these regulations that federal laws require. And now they’re ducking questions about why the data on delta smelt don’t support the limits on water deliveries that they have imposed.” … “

January 13, 2010 · Filed Under Delta smelt

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Congressman Gary Miller: California on the hook for a fish

Posted by: Aqua Blog Maven on January 5, 2010 at 7:51 am

From U. S. Congressman Gary Miller in the O. C. Register, this commentary:

“Californians are still waiting for Congress or the Obama administration to end the man-made drought plaguing the Golden State. It has been more than two years since Congress was first asked to step in and end this needless calamity.

California water officials recently issued their bleakest initial water-supply forecast in state history – allocations in 2010 of 5 percent of requested supplies. Our state’s grim water crisis is largely due to limited water supplies in the Sacramento-San Joaquin Delta because of Endangered Species Act protections for the California Delta smelt, a 3-inch bait fish.

In 2008, a court ruling found that pumps in the Delta may be harming the Delta smelt by reversing the direction of flow in the Delta during the fishes’ spawning and early juvenile phase. Subsequently, interim restrictions on pumping are in place between late December and June each year until California finds a solution. … “

January 5, 2010 · Filed Under Delta smelt, Water & Wildlife

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Smelt Suit: Water users take their case to the courts

Posted by: Aqua Blog Maven on December 20, 2009 at 8:50 am

From CFS Engineering:

“For nearly three decades, Westlands Water District received almost 100 percent of its water allocation from the federal Central Valley Project. Water allocations began to decrease in 1992, thanks to environmental legislation, but there was still enough to grow crops and make a living. However, in February the U.S. Bureau of Reclamation, which oversees the Central Valley Project, announced farmers south of the Sacramento-San Joaquin Delta would receive no water. In the end, residents received a drastically reduced amount.

Westlands, which receives all of its water from the CVP, serves about 50,000 people in western Fresno and Kings counties, most of whom depend on agriculture. In March, Westlands and the San Luis & Delta-Mendota Water Authority, an organization that represents CVP water users and of which Westlands is a member, sued the U.S. Department of the Interior, the U.S. Fish and Wildlife Service and the U.S. Bureau of Reclamation.

The water agencies sued the federal government over a document the Fish and Wildlife Service released in December 2008. The biological opinion examined the effects of operating the CVP and the State Water Project, the state’s two main water systems, on Delta smelt, a threatened fish under the federal Endangered Species Act. The act requires Fish and Wildlife to produce a biological opinion if a federal project could jeopardize an endangered species’ existence. … “

December 20, 2009 · Filed Under Delta smelt

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Judge Wanger rules that Bureau of Reclamation violated NEPA in accepting and implementing U.S. Fish & Wildlife Service’s Biological Opinion on Delta smelt

Posted by: Aqua Blog Maven on December 9, 2009 at 8:47 am

From Brian D. Poulsen of Somach Simmons & Dunn:

“On November 13, 2009, Judge Oliver Wanger of the United States District Court, Eastern District of California, invalidated the Bureau of Reclamation’s (Reclamation) decision to accept and implement the United States Fish & Wildlife Service’s (Service) December 15, 2008 biological opinion (BiOp) addressing the impact of coordinated operations of the Central Valley Project (CVP) and State Water Project (SWP) (collectively, Projects) on the threatened delta smelt, and its corresponding Reasonable and Prudent Alternative (RPA). The Court ruled that Reclamation failed to comply with the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (NEPA), by provisionally accepting and implementing the BiOp and RPA without first completing an environmental impact statement (EIS) to consider significant effects on the human environment.

Background

In 2005, the Service issued a biological opinion on the effects of the coordinated operations of the Projects on the threatened delta smelt, wherein it found that the operations of the Projects would not jeopardize the continued existence of the smelt. Environmental groups subsequently challenged that opinion. On May 25, 2007, Judge Wanger ruled that the opinion failed to analyze significant information, including the smelt’s total population numbers, and that such a failing rendered the Service’s “no jeopardy” finding arbitrary, capricious, and contrary to law. Consequently, Judge Wanger ordered the Service to conduct a new biological opinion. Pursuant to that order, the Service issued the BiOp at issue in this litigation on December 15, 2009. That BiOp found that planned coordinated Project operations would jeopardize the continued existence of the delta smelt and/or adversely modify its critical habitat. … “

December 9, 2009 · Filed Under Delta smelt

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Afternoon update: Judge says feds must consider impacts of smelt plan

Posted by: Aqua Blog Maven on November 16, 2009 at 4:51 pm

From the Silicon Valley Mercury News:

“FRESNO, Calif.—A federal judge says the U.S. Bureau of Reclamation should have considered the environmental impacts before moving forward with a plan to protect a threatened California fish species.

The Fish and Wildlife Service rewrote its rules governing the management of the delta smelt last year. The plan caused cutbacks in the amount of freshwater that could be pumped to farms and cities south of the Sacramento-San Joaquin Delta. … “

Read more from the Silicon Valley Mercury News by clicking here.

November 16, 2009 · Filed Under Delta smelt

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2 new lawsuits to save S.F. Bay-delta smelt

Posted by: Aqua Blog Maven on November 15, 2009 at 10:05 am

From the San Francisco Chronicle:

“Two environmental groups sued the federal government Friday seeking greater habitat protections for two San Francisco Bay-delta fish species, one of them the delta smelt, a small but important creature in California’s water wars.

One lawsuit asks a federal judge in Sacramento to require the U.S. Fish and Wildlife Service to respond to the groups’ March 2006 request to change the delta smelt’s status from “threatened” to “endangered.” That action would somewhat tighten federal standards for development or water-use permits.

A second suit, filed in San Francisco, challenges the federal agency’s decision in April to deny protected status to the bay-delta population of the longfin smelt. The agency said the local population is not a distinct group entitled to protection because some of the fish migrate up the coast to breed with other longfin, a conclusion the environmental groups called a reversal of the government’s longtime position. …”

Read more from the San Francisco Chronicle by clicking here.

November 15, 2009 · Filed Under Delta smelt, Longfin Smelt

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Commentary: Little fish takes big bite; are you paying a “Delta smelt tax” yet?

Posted by: Aqua Blog Maven on November 15, 2009 at 9:53 am

From the Orange County Register, this commentary by Harold Johnson, attorney for the Pacific Legal Foundation:

“Are you paying a “Delta smelt tax” yet?

You are, or might be before long, if you live in one of the 28 Orange County cities or water districts with ties to Southern California’s Metropolitan Water District, which gets water, in part, from the Sacramento-San Joaquin Delta.

The Delta smelt is a pinky-size fish listed as “threatened” under the federal Endangered Species Act. In a controversial strategy to keep the smelt’s numbers from evaporating, federal officials ordered dramatic cutbacks in the pumping of water from the Delta to central and Southern California.

Pumping less means upping water rates for millions of Californians – hence, a Delta smelt “tax.”

“The [feds'] environmental decision has impacted the flow of water to Southern California by approximately 35 percent,” Garden Grove water services manager David Entsminger told the Register’s Teri Sforza in June. Garden Grove residents’ water rates went up 19.7 percent at the beginning of September. …”

Read more of Harold Johnson’s commentary by clicking here.

November 15, 2009 · Filed Under Delta smelt

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Flash Report: Meg Whitman protects the Delta smelt

Posted by: Aqua Blog Maven on November 10, 2009 at 7:48 am

From the Flash Report:

“On Saturday, the San Jose Mercury News reported that Meg Whitman’s personal foundation has donated thousands of dollars to protect the delta smelt – a revelation that seriously calls into question Whitman’s credibility on water issues and her credibility with voters in the Central Valley.

In 2007, Whitman donated $100,000 to the Environmental Defense Fund’s Center for California Rivers and Deltas. The Environmental Defense Fund is a liberal group that proudly advocates for the rights of the Delta Smelt over the rights of our farmers in the Central Valley.

A donation to the Environmental Defense Fund is bad enough, but directly contributing to the EDF’s main efforts to steal water away from the Central Valley is unacceptable for a supposed “Republican” running for Governor. … “

Read more from the Flash Report by clicking here.

November 10, 2009 · Filed Under Delta smelt

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Is the Pacific Legal Foundation’s challenge to the Delta smelt regulations headed to the Supreme Court?

Posted by: Aqua Blog Maven on November 4, 2009 at 1:21 pm

From the Pacific Legal Foundation:

“Pacific Legal Foundation is pursuing a constitutionally based legal challenge to the Delta smelt regulations that are starving farms and communities of water in the San Joaquin Valley.

Watch PLF Litigation Director explain why this might ultimately be a case for the U.S. Supreme Court.

November 4, 2009 · Filed Under Delta smelt

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Delta smelt remains on the brink of extinction

Posted by: Aqua Blog Maven on October 23, 2009 at 11:59 am

From ABC affiliate KFSN Channel 30, Fresno:

October 23, 2009 · Filed Under Delta smelt

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Thursday’s top of the scroll: Delta smelt still close to extinction, surveys show

Posted by: Aqua Blog Maven on October 22, 2009 at 10:25 am

From the Sacramento Bee:

“New surveys this summer of the Sacramento-San Joaquin Delta’s tiny smelt show the fish remains close to extinction, prompting questions about whether cutbacks in water pumping to protect the species did any good.

The Delta smelt population this summer fell back to the historic low set in 2005, and is now well below high points recorded in the late 1970s.

Controversial new federal rules this year reduced water diversions from the Delta on behalf of the fish. That hurt the region’s farm business, which was already struggling with another year of drought.

Many observers had hoped pumping cutbacks would help the Delta smelt rebound.

But the latest population data, obtained by The Bee on Wednesday, suggest that one single action, in just one year, doesn’t save a species. …”

Read more from the Sacramento Bee by clicking here.

October 22, 2009 · Filed Under Delta smelt

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Science-based group sues Fish & Wildlife Service for failing to make decision on uplisting the declining Delta smelt population

Posted by: Aqua Blog Maven on October 17, 2009 at 9:29 am

From YubaNet.com, this press release from the Council for Endangered Species Reliability:

“Warning that the federal government is mismanaging the delta smelt into extinction, the Council for Endangered Species Act Reliability (CESAR), a nonprofit public interest group, filed suit today to compel the United State Fish and Wildlife Service (USFWS) to declare these tiny, embattled fish an endangered species with all of the protections that federal law provides. At present, delta smelt are only listed as a threatened species.

“There is no question that the smelt are in desperate need of help,” said Craig Manson, Executive Director of CESAR, who has studied the problem. “But for more than two years, USFWS has been sitting on a petition that would extend to the smelt the full range of protections that good science shows they need.”

USFWS’s failure to act on the petition is itself a violation of the Endangered Species Act (ESA). The Center for Biological Diversity, Bay Institute, and Natural Resources Defense Council jointly petitioned to have the smelt declared an endangered species on March 8, 2006. ESA requires the government to respond within 90 days, but instead, the government delayed taking any action until July 10, 2008, when it agreed that an endangered species listing “may be warranted” for the smelt. …”

Read more from YubaNet.com by clicking here.

October 17, 2009 · Filed Under Delta smelt

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Pacifc Legal Foundation: Thoughts on delta smelt Commerce Clause challenge

Posted by: Aqua Blog Maven on October 14, 2009 at 8:54 am

From the Pacific Legal Foundation’s Liberty Blog:

“Last week a federal district in Fresno rejected Pacific Legal Foundation’s constitutional challenge to the federal government’s devastating delta smelt water restrictions. Even though the delta smelt is a noncommercial species that is found only in California, the court ruled that the U.S. Fish and Wildlife Service may regulate the smelt under the Commerce Clause. According to the court, in enacting the Endangered Species Act, “Congress had a rational basis for believing that requiring federal agencies to evaluate the impacts of planned activities on all threatened or endangered species, regardless of their geographic range, was the most effective way to protect the commercial benefits of biodiversity.”

We’re obviously disappointed with the decision, but not discouraged. We think the district court applied incorrect legal standards, making its decision ripe for appeal. We also believe that the biodiversity rationale relied upon by the court offers no limit to the power of the federal government. …”

Read more from the Pacific Legal Foundation’s Liberty Blog by clicking here.

October 14, 2009 · Filed Under Delta smelt

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Pacific Legal Foundation: Delta smelt update – oral argument recap

Posted by: Aqua Blog Maven on October 7, 2009 at 7:28 am

From the Pacific Legal Foundation’s Liberty Blog:

“Last week in Fresno, a federal district court heard oral arguments concerning issues related to the U.S. Fish and Wildlife Service’s delta smelt biological opinion. One important matter heard by the court was Pacific Legal Foundation’s constitutional cause of action — given that the delta smelt is found only in California and has no commercial value, we don’t believe that the federal government may use its interstate commerce power to impose any sort of delta smelt regulations.

Unfortunately, the court tentatively declined to adopt our argument. We will have to wait for the court’s final decision before determining whether an appeal to the Ninth Circuit is appropriate. …”

More from the Pacific Legal Foundation’s Liberty Blog by clicking here.

October 7, 2009 · Filed Under Delta smelt

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Michael Fitzgerald: When it comes to Valley ag, Sean Hannity is all wet

Posted by: Aqua Blog Maven on September 23, 2009 at 7:50 am

From Record columnist Michael Fitzgerald:

“Sean Hannity parachuted into the San Joaquin Valley last week to broadcast another diatribe about the “man-made drought.” And the maleficent minnow to blame for it.

Why, a meaningless guppy, in cahoots with environmentalists, and an activist judge – wackos who put fish before people – aided and abetted by Barack Hussein Obama, are turning the Valley into a Dust Bowl and God-fearing farmers into the Joads. “To defend this little 2-inch Delta smelt fish,” Hannity marveled, they have decided that the farmers come second and the Delta smelt comes first!”

To my astonishment, the “fish vs. man” hoax has hardened into an article of faith on the right.

Could anybody really believe the state’s establishment gob-smacked its most politically powerful interests in arbitrary defense of a smelt? …”

Read more of Michael Fitzgerald’s column by clicking here.

September 23, 2009 · Filed Under Delta smelt

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Delta smelt protection project starts

Posted by: Aqua Blog Maven on September 19, 2009 at 7:28 am

From the Contra Costa Times:

“Work started this week on a project designed to protect an endangered Delta fish and in the process ensure that people and businesses throughout Contra Costa County have a consistent water supply.

Crews on Wednesday began clearing vegetation from around a river inlet near Delta Road and Tule Lane in Knightsen, where Contra Costa Water District will install a large screen to prevent Delta smelt from being sucked into its pumps.

Delta smelt is considered an “indicator species,” meaning its numbers reflect the overall health of other fish species in the San Joaquin and Sacramento rivers. The state’s biannual surveys of fish populations show that this native species is in greater peril than ever because of a variety of factors.

Contra Costa Water District pumps water from the southern Delta to approximately 550,000 residential and industrial customers in an area that stretches from Brentwood to Concord and Pleasant Hill, as well as parts of Walnut Creek and Martinez. …”

Read more from the Contra Costa Times by clicking here.

September 19, 2009 · Filed Under Delta smelt

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