Judge Orders State to Shut Down Pumps to Save Delta Smelt, Salmon

Judge Orders State to Shut Down Pumps to Save Delta Fish

by Dan Bacher

In a monumental victory for anglers and conservationists, a judge on March 22 ordered the State Department of Water Resources to shut down the state's water export pumps in the South Delta in order to save endangered salmon and Delta smelt.

Alameda Superior Court Judge Frank Roesch, in a strongly worded opinion, ordered the State Resources Agency to “cease and desist” from further operation of the Delta pumps “until and unless” they obtain from the DFG an incidental take permit for winter run chinook salmon, spring run chinook salmon, and Delta smelt in compliance with the California Endangered Species Act (CESA).

Fishing and environmental groups applauded the decision since it has come at a time when San Francisco Bay-Delta fisheries are in severe crisis. The Delta smelt population, a once plentiful forage fish for larger species, has declined to the lowest levels on record over the past five years at a time at a time when state and federal exports have risen to record levels.

Three other open water species - longfin smelt, juvenile striped bass and threadfin shad - have also crashed, along with the zooplankton that they feed upon. The POD (Pelagic Organism Decline) team, a group of federal and state scientists that has been studying the decline for the past several years, has pinpointed water export changes, toxic chemicals and invasive species as the three major factors in the decline.

“We're delighted and surprised with the decision,” said Bill Jennings, executive director of Watershed Protectors, a project of the California Sportfishing Protection Alliance. (CSPA) “The judge agreed with us that the Fish and Game Code clearly states that you have to get a permit if you're going to kill endangered species in the Delta pumps.”

“It opens the door to the restoration of the Delta, although we still have a long way to go,” explained Jennings. “We don't seriously believe that the pumps will be totally shut off, but we may see a ramping down of export levels to those before the recent pelagic organism decline began.”

The decision resulted from a lawsuit filed by CSPA in November 2006 as a last ditch attempt to stop the continuing decline of Delta fish populations. The state and federal governments have failed to do anything substantial about stopping the fish decline caused by increased water exports.

“The State Resource Agency has been breaking the law for years,” said Jennings. “We had to file the lawsuit to hold the DFG and DWR accountable for the killing of endangered fish in the pumps.”

The SWP provides some or all of the drinking water to 24 million people in California, including the cities of Los Angeles and San Diego. In fact, around 30 to 40 percent of southern California drinking water supplies come from the Delta. The water also irrigates 775,000 acres of cropland in the San Joaquin Valley, according to Sue Sims, Department of Water Resources spokesperson.

The judge allowed 60 days for the agency to develop a plan to comply with CESA's mandatory incidental take permit requirements. Roesch also gave the DWR 15 days to provide any additional information to the court that would impact the permit process, but the parties to the lawsuit agreed to extend the deadline from April 6 to April 11.

In his decision, Roesch chided the Resources Agency for being less than forthcoming in providing input and information for reaching his decision.

“This decision has been made without any input from the DFG as to its perceptions of whether the documents put forth as DFG's authorization for the incidental take were or were not intended as such,” said Roesch. “The Court regrets that an important case such as this must be decided without all the possible available relevant information.”

The ruling systematically dismantled the "argument" of DWR that a “patchwork quilt” of five agreements between state and federal agencies was the same as an incidental permit, arguing that none of these agreements granted a “take” permit. The five agreements cited were the 1986 Four Pumps Agreement, the 1990 Four Pumps Framework Agreement, the 1994 CALFED Framework Agreement, the 1999 CALFED Accord and the 1995 Article VII Agreement.

Roesch said that the best that can be said for the five documents is that they “accept that fish will be killed in the Harvey O. Banks Pumping Plant operations and that the parties agree that mitigation measures will be taken. While the documents certainly demonstrate the fact that DWR was and has been attentive to the issue of the incidental take caused by the pumping plant operation, it cannot be said the documents state any agreements by the DFG authorizing the take of any species of fish, endangered or not.”

On page 8, the judge also blasted the Resource Agency's argument that CESA prohibits a “person” from taking an endangered species and because DWR is not a “person,” the law does not bind it.

“It would be nonsense to create an exception to Fish and Game Code Section 2980 (CESA) by passage of 2081 (a) (an incidental take permit) if 2080 did not apply to public agencies,” said Roesch.

Officials with the Department of Water Resources were very upset with the ruling - and concerned that the judge hadn't considered the Bay Delta Habitat Conservation Plan (BDHCP) now being developed in collaboration with an array of state agencies.

“We're perplexed with the court's ruling in this case,” said Lester Snow, director of DWR. “We find the prospect of curtailing pumping to be unacceptable in terms of the economic consequences to the state.”

“We are committed to developing a cutting edge conservation package for the Delta, and have been for some time. We're also working with federal agencies on development of a new biological opinion. We certainly will suggest that the judge reconsider his draft decision and put it in terms that are more logical and acceptable to developing a conservation program for the Delta," he explained.

Ryan Broddrick, DFG Director, claimed that 60 days was not enough time to develop a plan to save Delta fish.

"We want to find solutions for the delta that have long-term sustainability," Broddrick said, as quoted by reporter Glen Martin in the S.F Chronicle on March 24. "The (60-day) time frame offered is not sufficient."

During a hearing of the State Senate Natural Resources Committee on March 28, Senator Mike Machado and other Senators grilled Broddrick about his failure to get the take permit.

"The reality is you didn't take the step to try to enforce the law,” said Machado.

“Correct," Broddrick answered him.

Fishing and conservation groups have been very critical of the Bay Delta Habitat Conservation Plan, the recently inaugurated Delta Vision process by the Governor and other supposedly “consensus” processes designed to “solving” the Delta's problems.

“The Bay Delta plan will take many years,” emphasized Jennings. “If we wait for completion of this plan, we'll see species dropping into the abyss of oblivion. This plan can't be considered in lieu of statutory requirements to obtain a take permit, as ordered by the judge.”

This plan is highly problematic because agencies and water contractors have agreed upon “no surprises” and “no net loss” of water supplies as pre-conditions for participation in the BDHCP process.

“Although the water agencies and contractors may agree to do some fish and habitat mitigation, the agreement will in effect immunize them from contributing to future mitigation,” argued Jennings.

The California Endangered Species Act is more stringent than the federal Endangered Species Act in its provisions for mitigation. CESA requires that all losses be fully mitigated - either take must be avoided or the taken species must be replaced.

“DFG and DWR have engaged in a dance of denial in avoiding the CESA,” said Jennings, “since they aren't prepared to mitigate for the loss of species listed under CESA.”

Michael Lozeau, the attorney representing the alliance, emphasized that the agency will have to mitigate fish losses by reducing pumping, improving habitat and other measures. “They have to replace every single Delta smelt, winter run chinook or spring run chinook that is taken in the Delta pumping facilities,” Lozeau said.

The need for mitigation becomes very urgent when you consider that the Delta smelt population is so depleted that the fish now barely register on the statistical charts of scientists surveying population levels.

“DWR really has no idea how many Delta smelt they are killing, since they aren't even able to measure the fish in their critical juvenile larval life stage,” said Jennings. “There are so few Delta smelt left that you can probably name each one that's left.”

Jennings quipped, “The Resources Agency's 'patchwork quilt' of agreements is now in tatters.”

Barbara Parrilla, coordinator of Restore the Delta, was also greatly encouraged by the judge's decision. “We think that water agencies complying with the law is the essential first step to restoring the California Delta,” she stated.

She also said she wants to see state water agencies begin developing regional self-sufficiency programs for water delivery, conveyance, and use. “By creating regional conservation and reclamation programs, excessive water exports from the California Delta can be reduced permanently,” she explained.

“We have also begun questioning whether it is wise to rely on a water conveyance system that spans hundreds of miles across the state. Restore the Delta does not believe that shipping water from north to south is a wise way to protect the water supply from a natural or manmade disaster for all Californians,” said Parrilla.

This successful court decision points to a larger problem - the fact that the DFG and DWR are both included under the same agency, the California Resources Agency. Jennings said that this court decision demonstrates the need to have the DFG made independent of the Resources Agency so it can fulfill its mandate to preserve and protect the state's fish, wildlife and environmental resources.

“The question we must ask ourselves is whether or not our fisheries can survive the DFG remaining within the Resources Agency,” added Jennings. “When the fox and the chicken house guards are working together like the DWR and DFG are, who's guarding the chickens?”

I greatly applaud the California Sportfishing Protection Alliance, Bill Jennings and Attorney Michael Lozeau for having the courage and resolve to take the State of California to court for breaking its own law, the California Endangered Species Act. The judge clearly and unambiguously agreed with them that the Department of Water Resources can't kill endangered salmon and smelt without a take permit.

For more information, contact: Bill Jennings, Chairman, California Sportfishing Protection Alliance Watershed Enforcers, 3536 Rainier Avenue, Stockton, CA 95204, t: 209-464-5067, c: 209-938-9053, f: 209-464-1028, e: deltakeep [at] aol.com.