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Judge Affirms Delta Smelt Ruling, DWR Files Appeal!
The Department of Water Resources 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. The Governor and his staff have apparently committed themselves to destroying Delta smelt, chinook salmon and other species that depend upon the Bay-Delta estuary for their survival.
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.
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.
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For Immediate Release , May 24, 2007
Contact: Tina Swanson, The Bay Institute, (530) 756-9021 or (831) 389-4638
Jeff Miller, Center for Biological Diversity, (510) 499-9185
Kate Poole, Natural Resources Defense Council, (415) 875-6100
Conservationists Threaten to Sue Feds, Appeal to State for Emergency Action as Delta Smelt Spiral Toward Extinction
Meltdown in the Delta: Agencies Allow Business as Usual While Juvenile Smelt Population Crashes Another 92 Percent From Historic Low of 2006
SAN FRANCISCO– The Bay Institute, Center for Biological Diversity, and Natural Resources Defense Council today sent a 60-day notice letter of intent to sue the U.S. Fish and Wildlife Service for violating the Endangered Species Act by failing to respond to a March 2006 petition requesting changing the federal listing of the critically imperiled delta smelt (Hypomesus transpacificus) from a threatened to an endangered species. The groups also sent an urgent request letter today to the California Fish and Game Commission requesting that the agency reconsider an emergency state listing of endangered for the delta smelt under the California Endangered Species Act.
California Department of Fish and Game data released this month on juvenile delta smelt abundance from 2007 indicate a staggering, possibly fatal drop in the delta smelt population. Spring trawl surveys looking for juvenile smelt in the Delta from March through May found just 25 juvenile delta smelt, the smallest number ever recorded, and most trawls caught no smelt at all. Juvenile smelt numbers are 92 percent lower than in 2006, which was a record low. So far this year the federal pumps in the Delta have killed nearly three times more young delta smelt than have been collected during the entire survey. On May 15 the Delta Smelt Working Group, comprised of agency biologists, declared that delta smelt are “critically imperiled” and that an "emergency response" is warranted.
“Scientists have been warning that delta smelt was on the brink of collapse for the past three years,” said Dr. Tina Swanson, senior scientist with the Bay Institute. “These same scientists have repeatedly recommended specific management actions that would help the fish, virtually none of which have been implemented by the state and federal agencies responsible for protecting this endangered species. The delta smelt’s current condition is a tragedy – but it should be no surprise to anyone who was paying attention to how this vital ecosystem was being mismanaged.”
In response to the new data, the Working Group urgently recommended that the state and federal water project change their operations to eliminate reverse flows in Delta channels, prevent further losses of the fish to the pumps and allow the remaining population to move safely downstream. The meager response by water project agencies — slight reductions in exports and partial opening of a single Delta channel barrier — has failed to satisfy the Working Group objectives. As of yesterday, state and federal fisheries agencies have failed to require compliance with the Group’s recommendation.
"Instead of enforcing existing environmental laws to protect native fishes and the Delta, Governor Schwarzenegger could turn out to be The Terminator for the delta smelt,” said Jeff Miller with the Center for Biological Diversity. “He is allowing the state water and fish agencies to continue to evade their legal and resource-management responsibilities in the Delta while we all watch the ecosystem’s best indicator species, the delta smelt, fade to extinction. If this business-as-usual approach continues, today it’s the delta smelt and tomorrow it could be the longfin smelt, Chinook salmon and the Sacramento splittail.”
Current water-management operations in the Delta are not only driving the delta smelt (and other species) toward extinction; they are also illegal, according to a recent court ruling. In January, 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. In response, the state agencies have attempted to evade compliance with the law for another year by relying on a memorandum of understanding that anticipates a future “consistency determination” based on as-yet unwritten federal permits that the agencies themselves do not expect to be completed before April, 2008.
“As the delta smelt goes, so goes the entire delta,” said Kate Poole, an attorney with the Natural Resources Defense Council. “If this little fish goes extinct, it will irreversibly damage the West Coast’s biggest estuary. It could lead to a cascading series of fish extinctions in California’s most important source of water. That’s not just bad for fish; it’s bad for all of us who depend on the delta for clean, healthy drinking water and agricultural irrigation supplies.”
The conservation groups submitted petitions in March 2006 to the Fish and Wildlife Service and February 2007 to the Commission to uplist the smelt’s federal and state status to endangered, a change necessary to compel fisheries agencies to implement recommended actions needed to protect the smelt and its Delta habitat. The rationale for emergency action was the delta smelt population plummeting to the lowest levels ever recorded, new population viability analyses indicating that the species was at imminent risk of extinction, and increasing magnitude and frequency of known threats to the species and its habitat, such as massive water exports. In June 2006 the Fish and Wildlife Service made a determination that emergency reclassification to “endangered” was not warranted, but that if conditions changed, the Service could develop an emergency rule. The Service has since failed to respond to the petition, though a 90-day finding was due in June 2006 and a 12-month finding was due on March 9, 2007.
On March 30, 2007, Fish and Game recommended that the Commission not take emergency action but rather proceed with a standard rulemaking for the delta smelt and at its April 12, 2007 meeting, the Commission denied the request for emergency action. On April 19, Fish and Game recommended a positive 90-day finding on the state petition and the Commission must make a finding at its June meeting.
The delta smelt is not the only fish species facing extinction in the Delta. Since 2002, scientists have also documented catastrophic declines of longfin smelt, threadfin shad, Sacramento splittail and striped bass. Numbers of white and green sturgeon in San Francisco Bay and the Sacramento River have fallen to alarmingly low levels as well, and the green sturgeon was federally listed as threatened in 2006.
The Sacramento splittail was listed as a threatened species under the federal Endangered Species Act in 1999, but was removed from the list in 2003 and stripped of protections by former Bush administration official Julie MacDonald, who resigned April 30 as deputy assistant secretary of the Department of Interior. MacDonald was being investigated by the office of the inspector general for altering Fish and Wildlife Service scientific reports on endangered species and improperly leaking internal reports to industry groups. A congressional inquiry has been launched to determine if MacDonald engaged in unlawful activity in delisting the splittail, since she edited the decision on the species in a manner that appeared to benefit her financial interests. MacDonald owns an 80-acre farm in Yolo Bypass, a floodplain that is key habitat for the splittail.
More information on the delta smelt decline and the ecosystem collapse in the Delta can be found at;
http://www.biologicaldiversity.org/swcbd/species/deltasmelt/index.html
article found @;
http://www.biologicaldiversity.org/swcbd/press/delta-smelt-05-24-2007.html
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