Judge Affirms Delta Smelt Ruling, DWR Files Appeal!

Judge Affirms Delta Ruling, DWR Files Appeal 

by Dan Bacher 

An Oakland judge, after reviewing additional material submitted by the State Department of Water Resources (DWR), on April 18 refused to back down from his earlier order to stop water exports from the South Delta until an incidental take permit for endangered fish is obtained. 

Superior Court Judge Frank Roesch ordered the agency to “cease and desist” from operation of the Harvey O. Banks Pumping Plant Operation until the agency has obtained authorization under the California Endangered Species Act (CESA) from the Department of Fish and Game (DFG) with regard to their “incidental take” of Delta smelt, winter-run chinook salmon and spring-run chinook salmon.

Mike Lozeau, the lawyer for The Watershed Enforcers Alliance, a project of the California Sportfishing Protection Alliance, filed the lawsuit last December to stop the destruction of endangered fish in the pumps at a time when the Delta is in its worst-ever crisis.

The Delta smelt population has plummeted from a population of 800,000 in 2001 to around 30,000 fish at present. Three other species, threadfin shad, juvenile striped bass, and longfin smelt, also crashed to historic low levels after the Department of Water Resources began increases of 1,000,000 acre feet of water per year starting in 2002.

“It was obvious to the judge that DWR had failed to comply with CESA for over a decade,” said Bill Jennings, executive director of the California Sportfishing Protection Alliance. “We’ll be perched over the shoulder of DFG watching them see if they require DWR to comply with the law. In the next 18 months, we’ll either save the Delta or lose it forever.”

Lester Snow, Director of DWR, strongly disagreed with the judge’s final decision and said the agency would file an appeal.  

 “We are disappointed that the Alameda court has denied our request for a hearing to present additional information on the Department's actions to address methods of compliance with the state's endangered species act,” said Snow. “Instead, the 60-day clock starts ticking on what would be a devastating blow to the state's water system if the State Water Project's Delta pumps are stopped.”

“We intend to appeal the decision, but at the same time have also applied for a consistency determination with the Department of Fish and Game that we hope will be granted in early May. A determination that the State Water Project's operations under the federal fish opinions is consistent with state law will address the court's finding and allow us to move forward with the important work of developing a long term conservation, protection and recovery plan for the delta and keep water moving throughout the state,” said Snow.

On April 20, DWR requested from the judge an automatic stay of the judgment on appeal or for an order staying the enforcement. The judge granted the stay.

Carl Torgersen, the Chief of the Division of Operation and Maintenance for DWR, pointed out a dire scenario if the request for a stay wasn’t granted. “The economic, agricultural and environmental consequences of shutting down the Banks Pumping Pumping Plant would be severe, far reaching and would adversely impact the State, its citizens and environment for a significant time into the future,” he stated.

However, Bill Jennings countered that “a reduction of exports to  late 1990 levels would clearly not be an unreasonable burden to south-state water users, especially as the Metropolitan Water District is on record as having a two year water supply in reserve." 

The Department of Water Resources then on May 7 appealed the April 18 court order giving it 60 days to shut down its export pumps unless it receives authorization from the DFG to "take" protected Delta smelt and Chinook salmon.

DWR also withdrew its request to DFG for a consistency determination that federal government authorization of the incidental take is consistent with state environmental law. DWR claimed it was "moving toward a comprehensive fisheries protection plan in conjunction with DFG and the federal government." 

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.  The water also irrigates 775,000 acres of cropland in the San Joaquin Valley.   

After issuing the preliminary ruling, Judge Roesch originally gave DWR 15 days to provide any additional information to the court that would impact the permit process - and the parties in the lawsuit agreed to extend the deadline from April 6 to April 11. 

In spite of all of the “additional information” the Department of Water Resources provided to the judge, it is significant that Roesch’s mind wasn’t changed in confirming his order to shut down the pumps. Governor Arnold Schwarzenneger and the Department of Water Resources are committed to fighting the judge’s order, rather than doing the right thing and complying with the law. 

Meanwhile, Gary Mulcahy, the governmental liaison for the Winnemem Wintu (McCloud River) Tribe, informed me that Jerry Johns of the Department of Water Resources and other state officials agreed to give the tribe a seat on the Delta Vision Stakeholders Panel.

The Winnemen Wintu held a war dance in September 2004 at Shasta Dam against the Bureau of Reclamation’s plans to raise the dam. The tribe has been in the forefront of the battle to stop the enlargement of the dam and to halt the South Delta Improvement Project and other plans to export more Delta at a time when the estuary is in severe crisis.

When Secretary of Resources Mike Chrisman announced the formation of a 41-member Delta Stakeholders Group to advise the “Blue Ribbon Task Force” in February, he completely excluded recreational anglers and Indian Tribes from the group, even they are impacted by the state and federal government plans for the Delta more than anybody else.

Due to heavy political pressure by fishing groups, Chrisman appointed John Beuttler, conservation director of the California Sportfishing Protection Alliance, in March.

The appointment of Mulcahy and Beuttler is a positive step, although it is unfortunate that the Governor tried to exclude recreational anglers and Indian Tribes from the Delta Vision process in his original appointments to the stakeholders group.

The stakeholders group is heavily stacked with the same water contractors and political hacks that are responsible for the decline for the decline of Delta fisheries. Political insiders believe that the Delta Vision process represents an effort to gain political support for the construction of a peripheral canal that would destroy the Delta ecosystem.