Federal Court Ruling A Victory for Delta Smelt and the Ecosystem

Judge Orders State and Federal Governments to Reduce Pumping to Protect Delta Smelt

(Fresno) In a landmark decision, a federal judge on August 31 ordered state and federal water project managers to reduce the amount of water pumped from the Sacramento-San Joaquin River Delta to protect the threatened delta smelt from extinction.

Environmentalists praised the ruling, even though the decision didn’t go as far as they wanted, while Governor Arnold Schwarzenegger and water agency representatives claimed the decision would devastate California’s water supplies and the economy.

U.S. District Court Judge Oliver Wanger ruled to restrict water deliveries from the California Delta’s massive export pumps to the Bay Area, Central Valley and Southern California to protect the fish. The Delta smelt is found only in the Bay-Delta estuary and is considered by scientists to be an indicator species demonstrating the health of the West Coast’s largest estuary.

Wanger, after hearing testimony from the defendants that other factors such as invasive species and toxics resulted in the collapse of the imperiled fish, said the pumps cause reverse flows in the Delta that kill smelt and damage vital habitat.

"The evidence is uncontradicted that these project operations move the fish. It happens and the law says something has to be done about it,” said Wanger.

The ruling will reduce pumping from the end of the December, when the fish are ready to spawn, until June, when the fish can move out of harm’s way from the pumps into Suisun Bay. Conservationists had hoped to begin the reduction in pumping this fall.

Thousands of smelt were killed in the state and federal pumps this May and June, in spite of a nine day reduction in pumping spurred by a court order issued by Alameda Superior Court Judge Frank Roesch in a separate lawsuit filed by the California Sportfishing Protection Alliance.

Kate Poole, Senior Attorney for the Natural Resources Defense Council (NRDC), said that Wanger’s ruling “appears to improve the smelt's chances” of survival. Plaintiffs in the case, represented by Earthjustice attorneys Trent Orr and Andrea Treece, are the Natural Resources Defense Council, Friends of the River, California Trout, the Bay Institute and Baykeeper.

“The question is whether it's enough to save the smelt from extinction,” Poole stated. “That's what's needed to protect the delta and clean drinking water, and it's what's required under the federal Endangered Species Act.”

"The San Francisco Bay Delta can't perform its vital job of supplying clean water for people, if it's so sick that it can't even support the tiny delta smelt. Millions of Californians depend on the delta to supply clean drinking water, irrigate crops and support salmon and other fishing jobs,” said Poole.

"This problem has been bearing down on us for many years, but responsible agencies have ignored it at the behest of Big Agriculture and municipal and industrial water users," commented Trent Orr. "This ruling may cause appreciable reductions in water exports from the delta, depending on the amount of precipitation in the coming water year. But if we want to preserve the delta and the species that depend on it, we'll eventually see this as a most welcome and necessary wake-up call."

Governor Arnold Schwarzenegger described the federal court ruling as a “devastating blow to our water supply system and state economy.”

“Today's federal court ruling to drastically cut Delta water exports is further proof that our water system is broken, unreliable and in crisis,” Schwarzenegger contended. “We must act now to ensure the safety and reliability of California's water system while we work to protect the environment. This decision is also going to have a devastating impact on the state's economy and the 25 million Californians who depend on Delta water.”

Schwarzenegger used the judge’s decision as another chance to promote his campaign to build a peripheral canal – code-worded as a “better conveyance system” – and more water storage behind two proposed reservoirs in the Sacramento and San Joaquin valleys.

“We need to invest in a better conveyance system so we have reliable water supplies and are able to protect the Delta's fragile ecosystem,” said Schwarzenegger. “Following today's ruling, there can be no doubt, we need more water storage and greater conservation efforts to meet the needs of our growing population, respond to the challenge climate change presents and meet the requirements of what the court has imposed.”

Jeff Kightlinger, General Manager of the Metropolitan Water District (MWD), criticized the ruling for not addressing other factors in the Delta smelt’s decline.

"Judge Wanger's decision to cut back water supplies doesn't address various other Delta problems and issues,” Kightlinger said. “Invasive species will continue to deplete food supplies for Delta smelt, pesticide runoff that can harm the estuary will persist, and the levee system will remain vulnerable to earthquakes and rising sea levels caused by climate change.”

MWD, the primary water importer for urban Southern California, claimed it stands to lose as much as 30 percent of its supplies from Northern California next year and possibly longer, based on initial estimates supplied by the state.

On September 5, Schwarzenegger administration officials amped up the Governor's campaign to build more dams and a peripheral canal by joining with statewide agribusiness and water agency officials to discuss the recent federal ruling in a highly choreographed press conference.

Poole noted that it too early to determine exactly how much water would be taken out of water supplies to protect the smelt – and she emphasized that the Delta can be managed to both protect fish and supply water to cities and agriculture by increased water conservation.

"We can manage the San Francisco Bay Delta to protect fisheries and supply clean, reliable water to downstream users,” she stated. “The key is to use water wisely. Through conservation, wastewater recycling and better use of groundwater, we can keep enough fresh water in the delta to ensure clean water and healthy fisheries. Water managers have been planning for this for years."

The judge gave both parties 50 days to jointly come up with an order after giving an outline of what he wanted. Wanger earlier this year tossed out a key U.S. Fish and Wildlife Service biological opinion regarding Delta water management and ordered the agency to rewrite the opinion. The August 31 ruling will be in effect only until the agency finishes rewriting the opinion.

Fishing groups also welcomed the decision, although they weren’t sure exactly how much the decision would reduce pumping levels and protect the smelt.

“Nobody really knows the full ramifications of the decision yet,” said Bill Jennings, executive director of the California Sportfishing Protection Alliance. “I’m also concerned that the ruling doesn’t protect the delta smelt during the fall. However, the fact that a conservative federal judge had to compel the reduction of state and federal pumps to protect the smelt is a searing indictment of the state and federal governments' failure to protect the estuary.”

In response to Schwarzenegger's dire prediction of disaster resulting from the ruling, he replied that the Governor could protect the water supplies of “99.9 percent of California’s urban and agricultural users” if water-intensive cotton crops in the San Joaquin Valley were taken out of production. California's cotton production approximates 1.5 million bales annually from approximately 550,000 acres, representing the 2nd largest planted acreage of any crop in the state.

Jennings also said Wanger’s decision should help strengthen the alliance’s current litigation against the Department of Water Resources and State Water Resources Control Board.

“It’s clear that if the Delta is to be saved, given the political paralysis of the Schwarzenegger and Bush administrations, it will be saved in court,” he said. “Hopefully, the Wanger ruling will make a difference.”

Zeke Grader, the executive director of the Pacific Coast Federation of Fisherman's Associations and a member of the State’s “Delta Vision” Blue Ribbon Stakeholder Committee, said the State should look first to the California Water Plan Update (http://www.waterplan.water.ca.gov/previous/cwpu2005/index.cfm) for solutions to California's water supply problems. To supply California’s water demand, the report stresses water conservation, water recycling or reuse, and desalination. The report also encourages more groundwater banking.

“Providing assistance to communities and agriculture to save water is one of the most effective and least expensive things we can do right now,” said Grader. “We don’t need expensive reservoirs that will be useless in any kind of prolonged drought, or a $26 billion dollar Peripheral Canal, euphemistically called an ‘isolated facility.’”

The court decision occurs in the context of an alarming decline in recent years of four California Delta pelagic (open water) species, including delta smelt, longfin smelt, striped bass and threadfin shad, as the state and federal governments have increased water exports by over 1,000,000 acre feet of water per year. The period between 2000 and 2005 saw record volumes of water diverted from the delta for agriculture and domestic consumption, according to Earthjustice.

On August 8, the Bay Institute, Center for Biological Diversity and NRDC simultaneously asked the federal government to list the Bay-Delta population of longfin smelt under the federal Endangered Species Act and the California Fish and Game Commission to list the species statewide under the California Endangered Species Act.