Thursday afternoon update: Pumps bring water, but for how long? Efforts to protect Delta smelt cut water by 660,000 acre feet last year
Posted by: Aqua Blog Maven on July 2, 2009 at 2:14 pmFrom the Capital Press:
Federal government pumps in the Sacramento-San Joaquin Delta started moving much-needed irrigation water to farms Wednesday, July 1, but questions remain about how long those pumps will continue running.
U.S. Interior Secretary Ken Salazar told the audience of a town hall meeting in Fresno Sunday, June 28, that the Central Valley Project pumps would run through the end of the year, facilitating 70 approved water transfers totaling 245,000 acre feet. Bureau of Reclamation Commissioner Mike Connor, who also spoke at the town hall meeting, said the agency is working to make the most of this year’s water supplies.
However, there was some skepticism. West side farmer Bob Diedrich said growers already knew the pumps would resume moving water south on July 1, but questioned how long they would remain on considering the latest National Oceanic and Atmospheric Agency biological opinion on salmon recovery. That biological opinion has focused all fish recovery efforts on reducing the amount of pumping from the Delta.
It is unknown how much the opinion would affect pumping, said Sarah Woolf of Westlands Water District. The Bureau of Reclamation told the district they would phase in the restrictions, Woolf said, but there is no guarantee the pumps will remain on.
Read more from the Capital Press by clicking here.
Thursday’s top of the scroll: Water pumping restrictions to protect Delta smelt end
Posted by: Aqua Blog Maven on July 2, 2009 at 8:07 amFrom the Sacramento Bee:
Federal officials on Tuesday ended seasonal water pumping restrictions intended to protect the threatened Delta smelt.
The end of the water flow limits came in accordance with a biological opinion that governs Delta water export pumping only through June 30. Tuesday’s action means water exports this summer no longer will be restricted specifically to protect smelt. The pumping rules don’t resume again until winter.
Read more of this brief story from the Sacramento Bee by clicking here.
California group pushes for Endangered Species activation
Posted by: Aqua Blog Maven on July 1, 2009 at 6:15 amFrom The Packer:
Less than 24 hours after a top Obama administration official rejected the idea of convening Endangered Species Committee to resolve California’s water woes, Sacramento-based Pacific Legal Foundation launched a campaign to force the committee’s activation. The foundation sent letters to President Barack Obama and California Gov. Arnold Schwarzenegger requesting they act to convene the committee, also known as the God Squad, said Rob Rivett, the foundation’s president.
Interior Secretary Ken Salazar rejected the idea at a news conference in Fresno June 28. “That would be admitting failure. I am not about failure,” Salazar said.
Under the Endangered Species Act, the special committee may be formed and empowered to override the law when it causes excessive destruction of jobs and the economy. “There’s a reason to have it in the statute,” Rivett said, “and there isn’t a better reason or circumstance than right now when we have an economy that is being devastated by the implementation of the Endangered Species Act.”
Salazar should take a step back to see what can be done that would modify “the Draconian measures that are being taken to try to save some of our farmworkers’ jobs and our farms,” he said.
Read more from The Packer by clicking here.
Pacific Legal Foundation asks Obama, Salazar, and Schwarzenegger for action to convene federal “God Squad” to address California’s water emergency; Destructive environmental regs are starving farms and communities of water, sinking California’s economy deeper into crisis; Federal “God Squad” panel is needed to stop scheme for even more draconian water cutbacks
Posted by: Aqua Blog Maven on June 29, 2009 at 7:30 amFrom the Pacific Legal Foundation:
ON JUNE 28, PLF WILL LAUNCH ONLINE SIGNATURE-GATHERING DRIVE TO PETITION OBAMA, SALAZAR AND SCHWARZENEGGER
Sacramento, CA; June 26, 2009: Pacific Legal Foundation announced today that it has formally requested both President Barack Obama and California Governor Arnold Schwarzenegger to act to convene a special federal panel – nicknamed the “God Squad” – to address California’s water emergency caused by harsh federal environmental restrictions that dramatically reduce the flow of water to millions of agricultural and urban water users.
On Monday, June 28, PLF’s online petition will go “live” at www.pacificlegal.org, allowing members of the general public to add their signatures to a call for President Obama, Interior Secretary Ken Salazar, and Governor Schwarzenegger to act to convene the “God Squad.”
“Water cutbacks caused by draconian federal environmental regulations have already caused devastation for San Joaquin Valley farmers, farmworkers, rural communities, and cities,” said PLF President Rob Rivett. “Now, new federal restrictions have been proposed that will exacerbate the water crisis in California. The Endangered Species Committee – informally know as the ‘God Squad’ – must be convened to save the California economy from an even more destructive government-caused water crisis.”
The Endangered Species Committee, nicknamed the “God Squad,” is a panel of cabinet officials that can be convened by the Secretary of the Interior, with power, in essence, to countermand Endangered Species Act (ESA) restrictions that cause excessive destruction to jobs and the economy.
The governor of an affected state may formally petition for the convening of the Committee. For this reason, PLF has sent a letter to Governor Schwarzenegger, urging him to submit a petition to Secretary of the Interior Ken Salazar. PLF’s letter to President Obama urges him to make sure that his administration – including Secretary Salazar – acts favorably on a petition from Governor Schwarzenegger, and, indeed, that all available steps are taken to convene the Committee, to address California’s water emergency.
Over the past year, the U.S. Fish and Wildlife Service has imposed devastating cutbacks on water pumping into California’s main water system – idling farmland, causing urban communities to consider rationing, and driving up unemployment in San Joaquin Valley’s rural areas – as part of a regulatory scheme to protect the delta smelt, a small fish listed as “threatened” under the ESA. Now, federal officials are proposing sweeping new reductions in water supplies to agricultural and urban areas, as part of a “biological opinion” relating to several species, including chinook salmon and steelhead. These further cuts in pumping and water supplies are estimated to remove an additional 500,000 acre-feet of water, the amount that is required to serve two million people annually.
“Without relief from the God Squad, the harsh enforcement of rigid environmental rules will inflict more pain and suffering in a state that is already enduring its worst unemployment in more than 60 years,” said PLF’s Rivett. “PLF calls on Governor Schwarzenegger and on the president to immediately do all in their power to ensure that the God Squad is convened as quickly as possible. California’s water emergency and economic crisis make it imperative that the God Squad be convened and responsible action be taken.”
About Pacific Legal Foundation
Pacific Legal Foundation (www.pacificlegal.org) is the leading legal watchdog for limited government, property rights, and a balanced approach to environmental regulation. On May 21, 2009, PLF attorneys filed a lawsuit on behalf of several Central Valley farmers against the U.S. Fish and Wildlife Service, challenging federal authority to regulate for the Delta smelt, which has led to sharply reduced pumping from the Sacramento-San Joaquin Delta. In 2001, PLF, representing two irrigation districts in the Klamath Basin, petitioned Interior Secretary Gale Norton to convene the God Squad to alleviate severe problems stemming from water cutbacks for endangered fish.A brief video about PLF’s history and mission, including comments by former U.S. Attorney General Edwin J. Meese III, can be viewed at http://www.youtube.com/watch?v=HnBSlRQwxKU.
Fish or families? Comedian Paul Rodriguez on Hannity
Posted by: Aqua Blog Maven on June 21, 2009 at 10:28 amPosted on YouTube, here’s a Sean Hannity segment featuring comedian Paul Rodriguez:
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 amFrom 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.
Pacific Legal Foundation commentary: U.S. Fish and Wildlife Service proves Governor Schwarzenegger wrong on the delta smelt
Posted by: Aqua Blog Maven on June 4, 2009 at 2:52 pmFrom the Pacific Legal Foundation’s blog, PLF on the ESA:
Last week we reported on the U.S. District Court’s decision to require the U.S. Fish and Wildlife Service to better justify delta smelt-based water restrictions. The Court also ruled that before the Service decides to impose unnecessarily restrictive water cutbacks, it must first consider the harm the restrictions are likely to cause humans.
Given the over 250,000 acre-feet of water at stake and the dire status of the Central Valley economy, the Court was particularly concerned over the economic and environmental impacts of the Service’s future delta smelt decisions. The Court listed several likely (and unfortunately harmful) results of the Service’s delta smelt regime: loss of water supplies, damage to permanent crops, 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.
The Court’s decision (available here) was a small but important victory for sanity in the otherwise insane world of environmental litigation, as it recognized that the human side of the delta smelt story cannot simply be ignored. Governor Schwarzenegger rightly remarked that the decision seemed “to provide additional balance to the operation of the state and federal water projects in the Delta.” (hat tip: News Blaze)
Read more of this commentary from the PLF on the ESA blog by clicking here.
Judge Wanger issues injunction against federal Delta smelt plan
Posted by: Aqua Blog Maven on June 1, 2009 at 3:29 pmFrom 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.
Small fish causes big problems in the delta
Posted by: Aqua Blog Maven on May 31, 2009 at 6:40 amFrom the Santa Clarita Signal:
A small fish native to the Sacramento Delta is causing water restrictions and driving state water-project officials crazy.
The delta smelt is endemic to the Sacramento Delta. The fish, which measures about 3 inches in length, makes its home in the same place from which a large portion of the state draws its water supply, said Dan Masnada, Castaic Lake Water Agency general manager.
The smelt lives at the bottom of the food chain in the delta where they wield a lot of influence over water policy in the state, Masnada said. “They are the canary in the coal mine for the delta,” he said. “If that species goes extinct, people question whether it’s the domino that takes down the other species.”
Besides being a major food source for other fish, the smelt also provide a measure of the health of the ecosystem, said John Beuttler, Conservation Director for the California Sportfishing Protection Alliance.
Read more from the Santa Clarita Signal by clicking here.
Dan Bacher: Delta showdown - State seeks reversal of federal decision protecting Delta smelt
Posted by: Aqua Blog Maven on May 29, 2009 at 8:08 am
From Dan Bacher at the Sacramento News & Review:
A recent petition by the Schwarzenegger administration to relax federal rules protecting Delta smelt is shaping up to be a key test of whether the Obama administration will stand firm in the implementation of a court-ordered biological opinion aiming to restore the fish.
The smelt is a small, slender-bodied fish, with a typical adult size of 2-3 inches, found only in the Sacramento-San Joaquin Delta. Scientists regard the fish as an “indicator species” that demonstrates the health of the ecosystem. The smelt has plummeted to record low population levels in the past several years. Last December, the U.S. Fish and Wildlife Service ordered restrictions on Delta water export pumping during wet years to protect the tiny fish during the fall spawning season.
The state of California wants to undo all that.
On May 7, Lester Snow, director of the California Department of Water Resources, formally requested the Fish and Wildlife Service to “reinitiate consultation” with the U.S. Bureau of Reclamation regarding state and federal water project pumping operations on the California Delta. The massive pumps have exported record amounts of water out of the estuary in recent years.
Read more from Dan Bacher at the Sacramento News & Review by clicking here.
Smelt operations a hedge against extinction
Posted by: Aqua Blog Maven on May 28, 2009 at 8:03 amFrom Redding’s Record Searchlight:
If the fragile Delta smelt winds up going extinct, the species could be restored where the Sacramento and San Joaquin rivers merge using a population being bred in the north state.
Scientists at the Livingston Stone National Fish Hatchery, a small operation nestled on the Sacramento River close to Shasta Dam, have reared the fish since last year. There are now 1,400 of the tiny fish at the hatchery, and the goal is to create a stock of thousands.
The project is expected to continue while the smelt remain in danger of sliding into extinction, said Scott Hamelberg, hatchery manager for the U.S. Fish and Wildlife Service. “We are all, of course, keeping our fingers crossed, hoping that doesn’t happen,” Hamelberg said.
Read more from the Record Searchlight by clicking here.
Pacific Legal Foundation commentary: The Delta smelt’s dirty little secret
Posted by: Aqua Blog Maven on May 27, 2009 at 7:53 amFrom the Pacific Legal Foundation, this commentary:
The delta smelt – a tiny fish the size of a small child’s hand – has a stranglehold on California’s water supply. Restrictions put in place on behalf of the smelt have resulted in drastic water shortages for farmers and municipalities as well as a further loss of jobs in the already economically depressed Central Valley. Coupled with the fact that no one is certain whether more water for fish (and less for humans) will actually help the delta smelt, it is little wonder why few understand the fairness of this situation.
To be sure, over-zealous environmental organizations may be blamed for the fish-before-people mantra that persists in today’s political climate. But the reality is that the current water restrictions are the result of a 2008 Endangered Species Act decision by the U.S. Fish and Wildlife Service. This federal decision was issued on behalf of the delta smelt, a threatened species; the decision has significantly curtailed the ability of California’s two main water projects to export much-needed water from the Sacramento-San Joaquin Delta southward.
Many groups have protested against this absurdity, and justifiably so. Farm workers marched across the Central Valley, pointing to the vast unemployment brought on by the water restrictions. Governor Schwarzenegger has strongly urged the Fish and Wildlife Service to reconsider its draconian enforcement of the ESA. Several irrigation districts have filed lawsuits in order for the Service’s decision to be overturned. The message behind these efforts is clear: taking water from the Central Valley and giving it to the delta smelt is unreasonable and unlawful.
Read more commentary from the Pacific Legal Foundation by clicking here.
Delta smelt biological opinion: Wanger grants preliminary injunction
Posted by: Aqua Blog Maven on May 27, 2009 at 7:52 amMore 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.
Effort to save smelt may worsen water shortages
Posted by: Aqua Blog Maven on May 26, 2009 at 8:37 amFrom the Sacramento Bee:
A water flow limit set by federal wildlife officials in the Delta is likely to temporarily worsen water shortages for some areas of the state.
The U.S. Fish and Wildlife Service on Friday set the limit to protect threatened Delta smelt, a small fish sensitive to water diversions. It did so after a team of biologists early last week reported that the number of smelt killed in state and federal water diversion pumps is growing.
More on this brief story from the Sacramento Bee by clicking here.
Protecting delta smelt not just water issue, says commentary
Posted by: Aqua Blog Maven on May 26, 2009 at 8:35 amFrom the North County Times, this commentary by Poway resident Gerold Firl:
Some people believe the delta smelt is just a dumb guppy. It does look small, but actually that little fish is huge. It’s a key link in the food chain of the Sacramento River delta, which in turn is a linchpin of the Pacific Coast marine ecosystem.
The multibillion-dollar Pacific fisheries industry has collapsed in the past few years, normally attributed to overfishing, but ultimately caused by ecological degradation because of pollution, development and freshwater diversion. The Sacramento delta is the primary freshwater inlet to the San Francisco Bay, and a primary incubator of Pacific salmon. Damage to the delta is felt throughout California.
Some people complain about judicial rulings restricting freshwater diversion from the delta to feed Southern California lawns, golf courses and avocado farms. They consider themselves hard-headed realists and clear-eyed conservatives, in contrast to pointy-headed environmentalists who never met a tree they didn’t want to hug or a furry critter they didn’t want to cuddle, who love spotted owls more than manly lumberjacks, with their practical flannels and trusty axes.
They think environmental protection is a boondoggle or joke. Some people don’t understand how serious this really is.
Read more of Gerold’s commentary from the North County Times by clicking here.
Dan Bacher commentary: Pacific Legal Foundation launches new attack on Delta smelt
Posted by: Aqua Blog Maven on May 24, 2009 at 11:02 amFrom Dan Bacher at IndyBay.org:
The Pacific Legal Foundation, an organization that represents the wise use movement and property rights activists, has launched a new lawsuit against the Delta smelt, now on the verge of extinction, calling the federal government’s protection of the fish “unconstitutional” and “immoral.”
“The Delta smelt exists in only one state, so feds lack authority to regulate,” according to the attorneys filing the lawsuit on behalf of subsidized growers in the Westlands Water District.
The PLF said the U.S. Constitution’s Commerce Clause limits federal domestic regulatory power to persons, things, or activities involved in, or affecting, interstate commerce (Article I, Section 8) - and claims that their lawsuit points out that the delta smelt does not fall into any of those categories.
“There’s nothing ‘interstate’ about the delta smelt,” said PLF attorney Brandon Middleton. “The Fish and Wildlife Service admits that this fish is found only in California. The Service also admits that it has no commercial value – nobody buys or sells this fish. The courts need to tell the Service it has no business imposing any regulations whatsoever related to the delta smelt – let alone extreme water cutoffs that are creating a crisis in California and could threaten the nation’s food supply.”
“The same is true of the delta smelt as U.S. Chief Justice John Roberts, while on a lower court, wrote about the arroyo toad: it is ‘not a channel of commerce nor is it in one. It is not an instrumentality of commerce, nor is it a person or thing in interstate commerce,’” said PLF attorney Damien Schiff.
The attorneys for the suit claim that the “fish-over-people policy” of the U.S. Fish and Wildlife Service is “immoral and flat-out unconstitutional.” PLF attorneys represent three farms in California’s Central Valley that have been impacted by the water cutbacks ordered by the Fish and Wildlife Service: Stewart & Jasper Orchards (an almond and walnut farm); Arroyo Farms (an almond farm); and King Pistachio Grove (a pistachio farm).
Read more of Dan Bacher’s commentary by clicking here.
Suit filed challenging smelt restrictions; Group says feds have no authority to oversee the fish
Posted by: Aqua Blog Maven on May 22, 2009 at 8:42 amFrom the Central Valley Business Times:
The U.S. Fish and Wildlife Service’s cutbacks on water pumping into California’s main water system violate the United States Constitution, contends a lawsuit filed in U.S. District Court in Fresno on Thursday.
The lawsuit was filed by Pacific Legal Foundation on behalf of Central Valley farms that the suit says are being “starved” of water.
The pumping cutbacks are designed to protect the delta smelt, a minnow-like fish designated as “threatened” under the federal Endangered Species Act (ESA).
But the lawsuit says the federal government has no constitutional authority to put the delta smelt on an ESA list, and therefore the Fish and Wildlife Service is barred from ordering pumping cutbacks to manage or “protect” smelt populations.
“Federal regulators are turning a recession into a depression for many agricultural communities by embracing an extremist agenda that puts fish before the well-being of millions of people,” says Damien Schiff, one of the attorneys filing the suit. “Big government’s policy of starving farms and communities of water is not just immoral – it is flat-out unconstitutional.”
More from the Central Valley Business Times by clicking here.
From the Fresno Bee:
The Sacramento-based foundation’s suit also argues that a smelt management plan issued in December — which has resulted in a reduction of water deliveries to west side farmers and urban users in the Bay Area and Southern California — fails to show how the pumping reductions from the Sacramento-San Joaquin Delta would benefit the smelt, and did not take into account the economic effects of the ruling.
The foundation sued both the U.S. Bureau of Reclamation and the state Department of Water Resources. The lawsuit seeks to invalidate the smelt management plan, and asks the federal courts to “retain jurisdiction over this matter until such time as defendants have fully complied with the U.S. Constitution [and] the Endangered Species Act.”
“The federal government is imposing a depression on California’s agriculture industry,” said Pacific Legal Foundation attorney Damien Schiff. He said it is a “policy that puts people behind fish” and is “flat-out unconstitutional.”
But environmentalists say the Pacific Legal Foundation’s arguments are based on legal issues already decided by the nation’s federal courts. “This claim has been considered and rejected by at least four courts that I am aware of, and probably more,” said Greg Loarie, an attorney for the environmental group Earthjustice.
More from the Fresno Bee by clicking here.
From Stockton’s Record:
Delta smelt live in this estuary alone, and foundation attorneys said Thursday they believe that even if recovered, the smelt would have no value. It’s a new legal tack in the litigation-swamped Delta, where more than a dozen lawsuits are pending.
Elsewhere, however, about a half-dozen similar endangered-species cases have gone to the courts; in the most recent, a U.S. Circuit Court upheld the feds’ protection of the Alabama sturgeon, said foundation attorney Damien Schiff.
That didn’t stop the foundation from filing suit in the smelt case, advancing its long history of pushing for Endangered Species Act reform. “The courts need to tell (Fish and Wildlife) that it has no business imposing any regulations whatsoever related to the Delta smelt,” attorney Brandon Middleton said.
More from The Record by clicking here.
Feds’ Delta smelt water-pumping restrictions are unconstitutional, says PLF lawsuit; Delta smelt exists in only one state, so feds lack authority to regulate, says lawsuit on behalf of farmers; feds’ fish-over-people policy called “immoral and flat-out unconstitutional”
Posted by: Aqua Blog Maven on May 21, 2009 at 10:53 amFrom the Pacific Legal Foundation, this press release:
The U.S. Fish and Wildlife Service’s devastating cutbacks on water pumping into California’s main water system violate the United States Constitution. So argues a federal lawsuit against the Service filed today by attorneys with Pacific Legal Foundation, on behalf of Central Valley farms that are being starved of water.
The pumping cutbacks, which are idling farmland, causing urban communities to consider rationing, and driving up unemployment in Central Valley rural areas, have been imposed to protect the delta smelt, a small fish designated as “threatened” under the federal Endangered Species Act (ESA). But today’s lawsuit says the federal government has no constitutional authority to put the delta smelt on an ESA list, and therefore the Fish and Wildlife Service is barred from ordering pumping cutbacks to manage or “protect” smelt populations.
“Federal regulators are turning a recession into a depression for many agricultural communities, by embracing an extremist agenda that puts fish before the well-being of millions of people,” said Attorney Damien Schiff. “Big government’s policy of starving farms and communities of water is not just immoral – it is flat-out unconstitutional.”
There’s nothing “interstate” about the delta smelt
The U.S. Constitution’s Commerce Clause limits federal domestic regulatory power to persons, things, or activities involved in, or affecting, interstate commerce (Article I, Section 8). Today’s lawsuit points out that the delta smelt does not fall into any of those categories.
“There’s nothing ‘interstate’ about the delta smelt,” said PLF attorney Brandon Middleton. “The Fish and Wildlife Service admits that this fish is found only in California. The Service also admits that it has no commercial value – nobody buys or sells this fish. The courts need to tell the Service it has no business imposing any regulations whatsoever related to the delta smelt – let alone extreme water cutoffs that are creating a crisis in California and could threaten the nation’s food supply.”
“The same is true of the delta smelt as U.S. Chief Justice John Roberts, while on a lower court, wrote about the arroyo toad: it is ‘not a channel of commerce nor is it in one. It is not an instrumentality of commerce, nor is it a person or thing in interstate commerce,’” said PLF attorney Damien Schiff.
Delta smelt “biological opinion” is unlawful, for statutory as well as constitutional reasons
Filed in Federal District Court in Fresno, today’s lawsuit asks for an injunction against the “biological opinion” on delta smelt protection measures, which the Fish and Wildlife Service issued in December. The opinion’s required measures have the effect of requiring significant cuts in the pumping from the Sacramento-San Joaquin Delta into the aqueduct that serves the Central Valley and tens of millions of urban residents in Southern California.
In addition to the constitutional cause of action, today’s lawsuit also challenges the biological opinion on statutory grounds. The lawsuit points out that, in violation of administrative law, the Fish and Wildlife Service failed to follow its own regulations in developing and issuing the opinion. For instance, it failed to adequately demonstrate (as its own regulations require) that pumping cutbacks would significantly benefit the delta-smelt population; and it failed to balance the economic impacts of the pumping cutbacks.
The plaintiffs: Central Valley farmers
PLF attorneys represent three farms in California’s Central Valley that have been impacted by the water cutbacks ordered by the Fish and Wildlife Service: Stewart & Jasper Orchards (an almond and walnut farm); Arroyo Farms (an almond farm); and King Pistachio Grove (a pistachio farm).
For instance, Stewart & Jasper Orchards, a 60-year-old family-owned farm near Newman, has been allocated only 10 percent of the water called for in its contract with its water district. “If these dramatic cuts in water allocations continue into the future, it will very likely force our family farming business to shut down,” said Jim Jasper, the company’s president.
The complaint: at PLF’s Web site
The case is Stewart & Jasper Orchards, et. al. v. Salazar. Read the complaint and background material at www.pacificlegal.org.PLF: Nationally renowned watchdog for property rights
Pacific Legal Foundation is the nation’s leading public-interest legal organization that litigates for limited government, property rights, and a balanced approach to environmental regulations, in courts across the country. Among PLF’s noteworthy victories: The federal court ruling that led to the bald eagle being removed from the ESA list. A brief video about PLF’s history and mission, including comments by former U.S. Attorney General Edwin J. Meese III, can be viewed at http://www.youtube.com/watch?v=HnBSlRQwxKU.
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 amFrom 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.
Dan Bacher: State urges feds to relax Delta smelt protections
Posted by: Aqua Blog Maven on May 13, 2009 at 7:57 amFrom Dan Bacher, this commentary:
A recent petition by the Scharzenegger administration to relax federal rules protecting Delta smelt is shaping up to be a key test of whether the Obama administration will stand firm in the implementation of a court-ordered biological opinion aiming to restore the imperiled fish.
In an attempt to weaken federal rules protecting the endangered Delta smelt, the California Department of Water Resources formally requested the U.S. Fish and Wildlife Service on May 7 to reinitiate consultation with the U.S. Bureau of Reclamation regarding state and federal water project pumping operations on the California Delta. The massive pumps have exported record amounts of water out of the estuary in recent years.
Director of the Department of Water Resources Lester Snow, in a letter to the U.S. Fish and Wildlife Service, claimed that freshwater flows to protect the smelt may not be necessary in the light of the recent discovery of a Delta smelt population at Liberty Island that is supposedly “unaffected” by State Water Project (SWP) and Central Valley Project (CVP) operations. The Delta smelt biological opinion issued on December 15 ordered restrictions on Delta water export pumping during wet years to protect the tiny fish during the fall spawning season.
“There is new information that shows there are better ways to protect Delta smelt that also better protect water supply,” said Snow. “The current biological opinion contains conditions which have a high degree of scientific uncertainty for the level of protection they provide, but these conditions have significant water supply impacts for California.”
California water agency (DWR) changes course on delta smelt
Posted by: Aqua Blog Maven on May 12, 2009 at 2:46 pmFrom the New York Times:
A fragile truce in a long battle over an endangered fish took a hit last week as California water regulators urged the federal government to reconsider protections for the delta smelt.
Lester Snow, director of the California Department of Water Resources, is questioning whether increasing freshwater flows in the Sacramento-San Joaquin Delta to protect the tiny fish is worth the effort — a reversal of the department’s position.
Citing “new information,” Snow told the U.S. Fish and Wildlife Service that a federal biological opinion in place since December may be overstating threats to the smelt. The opinion ordered pumping restrictions throughout California’s State Water Project in wet years to ensure water flows for the smelt during the fall spawning season.
Unpublished research conducted by Snow’s department, in concert with the California Department of Fish and Game, has revealed the existence of a separate delta smelt population in an area that is not affected by state water operations, Snow said. The population in question is thriving in a tidal marsh around Liberty Island in the northern delta.
“This population suggests that delta smelt are less susceptible to a catastrophic event than previously thought,” Snow wrote in the letter to Ren Lohoefener, FWS’s regional director in Sacramento.
Read more from the New York Times by clicking here.
Fish don’t vote, but could be the issue that establishes common ground between Republicans and Hispanic communities, says commentary
Posted by: Aqua Blog Maven on May 11, 2009 at 5:47 pmFrom Townhall.com, this commentary by Meredith Turney:
The Republican Party has long been fishing for an issue that will reach out to Hispanic and other minority voters. Now, a three-inch fish may be the key to establishing common ground between that voting bloc and the GOP.
Moderate Republicans chide party leadership for refusing to eject from the platform “divisive” social issues such as abortion or same-sex marriage, ignoring the fact that those issues provide the greatest common ground for Republicans and minority voters.
But there’s one issue that could unite Republicans (conservative and moderate) and minorities: stopping extreme environmentalism. Many immigrants from other countries—and their descendants—work hard and love the vast opportunities America provides. However, the very government that purports to aid minorities and the poor is instead oppressing them by taking away those opportunities through red tape and bureaucratic environmental policies. The freedom that attracted so many immigrants to this country is vanishing as environmentalists tie up the resources necessary to drive small businesses and family farms.
Actor and comedian Paul Rodriguez is the perfect example of how the threat of extreme environmentalism can bring together Democrat Hispanics and Republicans. Rodriguez owns a small family farm in California’s agriculture-rich Central Valley. This is the same area that has been radically affected by a judge’s ruling shutting off Sacramento-San Joaquin Delta water pumps that send water south. Why would a judge cut off the most essential nutrient for farming? Environmentalists claim the pumps could threaten the tiny smelt fish in the delta water. Under the federal Endangered Species Act, if an animal is “threatened,” the well-being of unfortunate humans in the area takes a back seat.
Read more from Townhall.com by clicking here.
California, feds at odds over Delta smelt; Request to reconsider protective smelt rules
Posted by: Aqua Blog Maven on May 9, 2009 at 6:59 amFrom the Sacramento Bee:
California water officials are fighting back against federal protections for an iconic Delta fish, a tactical shift that threatens to derail a cooperative attempt to fix the state’s water problems.
In a petition filed with the U.S. Fish and Wildlife Service Thursday, the state Department of Water Resources argues rules should be changed because new research suggests a separate group of threatened Delta smelt has taken refuge on Liberty Island and is unaffected by water operations. If successful, the state would avoid future releases of hundreds of thousands of acre-feet of water for the benefit of the tiny fish – water that could otherwise meet needs of users throughout California.
Liberty Island at the southern end of the Yolo Bypass, along the Sacramento River near Rio Vista, is owned by the Trust for Public Land. Its levees are breached, allowing tides to wash over the island, creating feeding and resting habitat.
New findings by DWR and state Fish and Game biologists indicate the flooded island is a year-round haven for some smelt, said DWR Deputy Director Jerry Johns. This may make the population more resilient than previously believed and less dependent on freshwater flow rules. The research is unpublished and ongoing, he said.
The federal rules, called a biological opinion, govern water management in the Sacramento-San Joaquin Delta to prevent smelt from being killed in water export pumps. The rules were revised six months ago in response to a lawsuit by environmental groups.
DWR objects to a particular fall condition that could require as much as 400,000 acre-feet of water to be released from its Oroville Reservoir to create downstream flows beneficial to smelt. That’s enough water to serve 1 million households for a year. “The water supply impacts to us are dramatic,” Johns said. “We think this idea of creating habitat is a much more effective way to address the Delta smelt issue than throwing a bunch of water at it.”
More from the Sacramento Bee by clicking here. Brief coverage from The Record by clicking here.
California determines delta smelt is endangered - and then seeks to reduce its protections?
Posted by: Aqua Blog Maven on May 9, 2009 at 6:58 amFrom Doug Obegi of the NRDC Switchboard Blog:
The tiny endangered delta smelt has become a popular target for anger over low water allocations this year. It’s not a charismatic species - not many people love a three inch long fish that smells like cucumber and lives only in the Bay-Delta estuary. But there are farmers and fishermen who support protecting the delta smelt, because they realize that protecting the smelt protects their economic interests. NRDC has sought to protect delta smelt in order to protect the estuary and its salmon, migratory birds, and wonderful wildlife, as well as to sustain farmers, fishermen, and all of us who depend on healthy, clean drinking water.
Delta smelt are a native fish that were historically one of the most abundant fish in the Bay-Delta estuary, but the 2008 survey results declined to the lowest levels ever recorded. Earlier this year, the California Fish and Game Commission voted to list delta smelt as endangered, having found that “the delta smelt population in California has declined significantly since its listing as threatened and the species’ abundance is now extremely low.” Populations of longfin smelt, striped bass, steelhead, salmon, and many other species that live in, or migrate through, the Delta have also declined precipitously in recent years.
Although many people blame the delta smelt for low water supplies this year, the Department of Water Resources has acknowledged that it is drought, not the Endangered Species Act, that are causing the low water allocations, and without these protections allocations might increase by 5%. Since I last blogged about agricultural water supplies in the Central Valley, the Bureau of Reclamation has increased water allocations, resulting in nearly 4 million acre feet of water estimated to be delivered to farmers in the Sacramento and Central Valleys this year. There’s no question that this is still going to be a tough year for many growers, and that all of us have to conserve water even more than usual this year, but the delta smelt are a symptom, not the cause, of California’s water woes.
Read more of Doug Obegi’s post by clicking here.
State seeks easing of federal Delta smelt protection
Posted by: Aqua Blog Maven on May 8, 2009 at 12:44 pmFrom the Sacramento Bee:
State water officials have asked the federal government to rewrite rules protecting the Delta smelt, claiming new research suggests the threatened fish may not be as vulnerable to water diversions as previously believed.
The Department of Water Resources asked for the review in a letter sent to the U.S. Fish and Wildlife Service late Thursday. The rules to protect the smelt, a native of the Sacramento-San Joaquin Delta, govern both state and federal water delivery operations in the estuary, a source of drinking water for 23 million Californians.
The protective rules were imposed by the wildlife service in December, following a court order that declared previous restrictions inadequate.
Read more from the Sacramento Bee by clicking here.
Judge halts further water cuts; Federal judge rejects environmentalists’ suit to scrap contracts
Posted by: Aqua Blog Maven on April 28, 2009 at 6:23 amFrom the Fresno Bee:
A federal judge on Monday rejected a request to cancel or renegotiate more than three dozen Sacramento River water contracts that environmentalists claimed were drawn up using flawed information.
The ruling by U.S. District Judge Oliver W. Wanger appears to keep in place the Central Valley’s intricately woven water system — and to spare agricultural users north and south of the Sacramento-San Joaquin Delta from potentially losing even more water.
Trent Orr, an attorney for environmental group Earthjustice, said it appears that water amounts outlined in the Sacramento River users contracts will be “there in perpetuity. We just don’t think that’s right.”
Westlands Water District spokeswoman Sarah Woolf said it was “nice to see [environmentalists] simply didn’t win one.”
Read more from the Fresno Bee by clicking here.
Westlands Water District and San Luis Delta Medota Water Authority sue to keep water flowing
Posted by: Aqua Blog Maven on April 25, 2009 at 8:04 amFrom the Merced Sun-Star:
The Westlands Water District and the San Luis Delta Mendota Water Authority are seeking federal court action to prevent the U.S. Fish and Wildlife Service from restricting their meager supply of water.
The water agencies Friday filed a motion in U.S. District Court in Fresno seeking a preliminary injunction against the Fish and Wildlife Service.
Westlands officials are concerned that its recently revised water allocation of 10 percent could be lost if the federal wildlife agency imposes a new set of restrictions on pumping water out of the Sacramento- San Joaquin Delta to protect the delta smelt.
Read more from the Merced Sun-Star by clicking here.
Delta smelt: “a worthless little worm that needs to go the way of the dinosaur” as Radanovich says, or key link & linchpin of the marine ecosystem?
Posted by: Aqua Blog Maven on April 25, 2009 at 7:53 amFrom KQED’s Climate Watch:
In hearings by the House Energy & Commerce Subcommitee today, Rep. George Radanovich (R-Fresno) called the Delta smelt “a worthless little worm that needs to go the way of the dinosaur.” He made the remark as part of a five-minute attack on “environmental alarmism,” in response to testimony from former vice-president Al Gore, founder of the Alliance for Climate Protection.
The tiny fish, recently listed by the state Fish & Game Commission as “endangered,” came up in remarks by Radanovich about the current drought conditions in the Central Valley. He blamed the lack of water on lawsuits that have restricted water supplies to farms, “for a Delta smelt–a worthless little worm that needs to go the way of the dinosaur. They’ve shut pumps down and restricted water deliveries to California over that thing, when what’s eating it is a striped bass, a non-native species in the Delta.”
Read more from KQED’s Climate Watch by clicking here.
In a commentary from the Pomerado News Group, engineer and scientist Gerold Firl defends the smelt:
Some people believe the delta smelt is just a dumb guppy. It does look small, but actually that little fish is huge.
It’s a key link in the food chain of the Sacramento River Delta, which in turn is a linchpin of the Pacific Coast marine ecosystem. The multi-billion dollar Pacific fisheries industry has collapsed in the last few years, normally attributed to over fishing, but ultimately caused by ecological degradation due to pollution, development, and freshwater diversion. The Sacramento Delta is the primary freshwater inlet to the San Francisco Bay, and a primary incubator of Pacific salmon. Damage to the delta is felt throughout California.
Some people complain about judicial rulings restricting freshwater diversion from the delta to feed Southern California lawns, golf courses and avocado farms. They consider themselves hard-headed realists and clear-eyed conservatives, in contrast to pointy-headed environmentalists who never met a tree they didn’t want to hug or a furry critter they didn’t want to cuddle, who love spotted owls more than manly lumberjacks, with their practical flannels and trusty axe. They think environmental protection is a boondoggle or joke.
Some people don’t understand how serious this really is.
The delta smelt is a very small fish which feeds directly on the planktonic base of the food chain, and in turn is food to larger fish and water birds. That is why it is so important. The little smelt is the aquatic link-species between plankton and the vertebrates. When the smelt go away, the species which feed on the smelt go away, too.
Read more of this commentary from the Pomerado News Group by clicking here.
Emily Underwood of the High Country News GOAT blog writes:
Poor smelt. Caught in the crossfire of California’s water wars, they never asked for adulation. Smelt are an indicator species and their disappearance bodes ill for the Delta ecosystem. Enviros say the California drought is being used politically to push new hydro projects — it’s not that there isn’t enough water, it’s that the whole system has been so badly planned. Moving forward, conservation and better irrigation practices are in order, not sacrifice of the ecosystem.
Republicans like 4th District Rep. Tom McClintock are also skeptical of the drought, but for opposite reasons, saying that environmental regulations, not farming or conservation, are the problem. McClintock seems to have inherited his predecessor John Doolittle’s talent for subtle analysis: “The question comes down to a very simple choice between people and fish.”
More from the High Country News GOAT blog by clicking here.
Frank Girardot: Delta smelt stinking up our water supply
Posted by: Aqua Blog Maven on April 21, 2009 at 8:38 amFrom Pasadena Star columnist Frank Giardot, this column, where he begins by noting his recent trip around the state:
If there was anything to take away from the trip, it was the feeling that we live in a beautiful state, which is a reason to be a proud. The thought has occurred to me often, but most of those instances were during good economic times.
(Sigh).
Even though it’s beautiful, California is also broken. I think I saw some proof of that in the Central Valley Thursday. On the 5 Freeway just south of Los Banos what looked like thousands of campesinos marched alongside the California Aqueduct. Many held signs that said “Agua = Vida.”
After stopping to watch from a vista point and then reading more about it in the Fresno Bee, I learned the marchers are angry that water deliveries from the Sacramento Delta will be cut off to tons of farms in the western San Joaquin Valley.
All because of a tiny fish known as the delta smelt. This little beast, that’s apparently endangered, has already wrecked its share of havoc here in the Southland. Because of environmental protections, we will have to reduce our usage by 10percent and pay more for it this summer.
Read the rest of this column in the Pasadena Star News by clicking here.
At House Natural Resources Committee hearing, Congressmen plead for more water for California farmers; request emergency suspension of the ESA
Posted by: Aqua Blog Maven on April 1, 2009 at 6:48 amFrom the San Jose Mercury News:
Displaying a bowl of minnows and pictures of unemployed farm workers and their families, California congressmen pleaded with their colleagues Tuesday to make an emergency exception to the federal Endangered Species Act.
The lawmakers said efforts to protect a 3-inch-long fish, the delta smelt, have led to court-ordered reductions in the amount of water pumped to some farmers in the San Joaquin Valley, leading to fallowed fields and skyrocketing unemployment. They said even as a drought enters its third year, there is enough water in California to share with the valley’s thousands of farms. Their proposal would increase the diversion of water for those farms.
In 2007, a federal judge ordered federal and state water authorities to reduce the amount of water they pump through the Sacramento-San Joaquin Delta in a bid to protect the delta smelt. The finger-length fish is considered a bellwether for the health of the delta, the heart of California’s water-delivery system.
Speaking before the House Natural Resources Committee, several of the state’s lawmakers discounted the drought as the reason for the San Joaquin Valley’s lack of water. Rather, they said it was a matter of priorities, with the government valuing fish over families.
Rep. Dennis Cardoza, D-Atwater, said thousands of families were moving out of his district. He called the exodus the “Dust Bowl migration in reverse.” Rep. Devin Nunes, R-Visalia, said the unemployment rate in his district is nearly 20 percent and is nearing 50 percent in some communities.
“We’re not asking for a billion-dollar bailout. We’re aren’t even asking for one single dollar,” Nunes said. “All we need is for this committee to move emergency legislation which would allow the delta pumps to return to historic export levels.” Without such action, the economic devastation will only grow worse, he said.
Read more from the San Jose Mercury News by clicking here.
From McClatchy Newspapers:
Under questioning, the Obama administration’s top irrigation official agreed it’s possible some economic stimulus funds may be used for drought relief in California. One billion dollars in Bureau of Reclamation funds provided under an economic stimulus plan will be distributed by the end of April, acting Bureau of Reclamation Commissioner Bill McDonald said. “The conditions occurring in California require decisive, forceful actions by government,” McDonald agreed.
Republicans and Democrats alike urged McDonald to fund the so-called “Two Gates Project,” a $26.5 million plan to install two temporary gates in the central Delta that would reduce the loss of fish and thereby minimize water export restrictions. McDonald did not commit his agency one way or another on any particular project.
Separately, the Bureau of Reclamation is offering money for temporary pumps, emergency wells and other drought-alleviating measures.
A federal Drought Action Team, first announced a month ago by Interior Secretary Ken Salazar and Agriculture Secretary Tom Vilsack, was to have its first formal meeting Tuesday afternoon, McDonald told the House panel.
“Things have moved forward, although the team hasn’t met as such,” McDonald said.
Read more from McClatchy Newspapers by clicking here.
Congressman Nunes apparently made history by bringing a bowl of rainbow smelt, a distant cousin of the Delta smelt, to the hearing:
Rep. Devin Nunes (R-Calif.) apparently made some sort of congressional history Tuesday when he asked the Natural Resources Subcommittee on Water and Power Oversight for “unanimous consent to submit these fish for the record.” And then he handed the fishbowl to subcommittee Chairwoman Grace F. Napolitano (D-Calif.).
Submitting fish into committee records is apparently a first.
Read more from Politico by clicking here.
Water contractors sue over smelt rule
Posted by: Aqua Blog Maven on March 26, 2009 at 7:27 amFrom Stockton’s Record:
The latest in a wave of lawsuits by water diverters was filed Wednesday in the intensifying Delta water wars.
The State Water Contractors alleges that a new state permit allowing some longfin smelt to be killed at the massive pumps near Tracy is too strict and may “very substantially” reduce the amount of water that can be delivered from the Delta to cities from the Bay Area to San Diego.
Read more from The Record 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 amHey, 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.htmlThe 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 amHere’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.
Rancho mayor asks state leaders to bring more water to O.C.: Gary Thompson says any water cut off to county will be ‘devastating’
Posted by: Aqua Blog Maven on March 20, 2009 at 5:38 amFrom the O.C. Register:
With the state facing a continuing drought, the mayor asked state leaders to sidestep a federal court ruling requiring California to limit pumping in northern California to protect an endangered fish.
In a letter sent to the governor and President Obama, Mayor Gary Thompson criticized a federal court’s decision that orders the Sacramento-San Joaquin Delta to reserve 600,000 acre feet of water to protect the Delta smelt, a 5 cm to 7 cm long fish that lives near the state capital.
Calling the court’s 2007 decision “unconscionable,” Thompson urged officials to reconvene the Endangered Species Committee to review the ruling.
Read more from the O.C. Register 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 amFrom 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.
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