Fresno Judge Halts Protection Plan For Winter Run Chinook

Fresno Judge Halts Protection Plan For Winter Run Chinook

by Dan Bacher

(Fresno) Federal Judge Oliver Wanger on Friday afternoon put a temporary hold on a federal plan (biological opinion) protecting salmon from the fish-killing California Delta pumps that deliver water to corporate agribusiness and southern California.

The ruling, in place for 14 days, allows for unlimited pumping, at least unless the projects hit "take" limits for salmon killed at the pumps or until Delta smelt protections are triggered in the Delta. The ruling can be extended by the judge for 14 more days.

Westlands Water District, the Metropolitan Water District of Southern California (MWD) and other water districts requested the Temporary Restraining Order (TRO) so that water exports from the Delta could be increased. The pumping restrictions are designed to protect migrating juvenile winter-run Chinook salmon from being killed in the massive federal and state project pumps.

Endangered winter run Chinook salmon are unique to the Sacramento River system. After migrating for thousands of years to spawn in the McCloud River every year, the run was blocked from migrating to its spawning grounds after the construction of Shasta Dam. Since then, the fish has been forced to spawn in the Sacramento below Keswick Dam and has declined dramatically due to increased Delta water exports, declining water quality, unscreened or poorly screened diversions and other factors.

The positive news is that Wanger ruled for the federal fishery agencies, Earthjustice and NRDC on the Endangered Species Act (ESA) claim. "He ruled that plaintiffs have NOT shown they are likely to succeed on the merits of their claim that the Biological Opinion violates the Endangered Species Act (ESA)," said Barry Nelson, senior water policy analyst from NRDC.

Unfortunately, the judge also ruled that Westlands and the other plaintiffs are likely to succeed on their claim that the NEPA (National Environmental Protection Act) applies to implementation of the federal biological opinon as he ruled in the delta smelt case.

"The judge made an erroneous finding of fact that the agencies didn't consider any alternatives or the impacts on the environment," said Nelson. "The National Marine Fisheries Service (NMFS) actually went through the factors, including estimated water supply costs and phased in parts of the RPA (Reasonable and Prudent Alternative).

"The judge also found that blocking ESA protections won't cause jeopardy because there aren't 'too many' fish being killed at the pumps - wholly ignoring critical habitat, indirect effects, and the fact that the BO requires all of the components of the RPA to be implemented to avoid jeopardy," said Nelson.

Following the above "reasoning," Wanger issued the TRO blocking the salmon biological opinion limitation on Old and Middle River reverse flows below -2,500 to -5,000 cfs. So there are currently no Old and Middle River flow restrictions in place, according to Nelson.

NMFS can come back in to show "more harm" to get the TRO dissolved. Meanwhile, NRDC and EarthJustice are considering their legal options.

"This ruling has enormous implications for the Delta and the fishing industry," said Nelson. "It also has dramatic implications for the SWP, as my colleague Kate explains here: http://switchboard.nrdc.org/blogs/kpoole/is_the_department_of_water_res.html"

The state's position is in conflict with other state laws, including regarding salmon protection, as Nelson explains here: http://switchboard.nrdc.org/blogs/bnelson/state_legal_strategy_in_the_de.html.

The ruling also has major implications for The Bay Delta Conservation Plan (BDCP), a plan that many fishing and environmental groups criticize as leading to the construction of a peripheral canal and more dams. "By the way, the judge specifically was comforted by the state's 'non-opposition' to the TRO request," Nelson observed.

Fishing groups are outraged about the court's ruling in favor of Westlands at a time that Central Valley salmon populations are in an unprecedented state of collapse. “Fishing families along one thousand miles of U.S. coastline rely on healthy runs of Sacramento River salmon to make a living; they depend on keeping the current salmon protection plan in place,” said Zeke Grader, executive director of the Pacific Coast Federation of Fishermen’s Associations. “Too much water is being taken from the San Francisco Bay/Sacramento-San Joaquin Delta estuary – salmon, fishing families, coastal communities and seafood consumers have paid a heavy price as a result.”

“The shutdown of the California recreational and commercial salmon fishing industry for the last two years has already erased $2.8 billion dollars and 23,000 jobs from our state’s economy,” said Dick Pool, program manager of Water4Fish. “The 2009 adult salmon returns to the Sacramento are almost assured to reach another all-time record low. The past water export practices have been the root cause of this decline. This federal fish restoration plan is the absolute minimum we need to begin a turn around of this decline.”

The Pacific Legal Foundation, a law firm that advocates on behalf of agribusiness and other corporate interests, praised the ruling. "Water is desperately needed in these parts of California, but even though the Golden State has received a substantial amount of precipitation over the past month, the salmon biological opinion has prevented water from getting to where it’s needed most," the group said on its "Liberty" blog.

"Under today’s decision, however, federal agencies will not be able to implement a significant component of the biological opinion for at least the next 14 days, meaning that much more water will be able to be pumped to California water projects," the group stated. "Although the harm from the federal government’s 'fish before people' policy has been clear to many, some have contended that environmental restrictions aren’t that big of a deal. Today’s decision, however, should put to rest the notion that the man-made, regulatory drought is anything but real."

The TRO was issued as Governor Arnold Schwarzenegger, Senate President Pro Tem Darrell Steinberg and corporate agribusiness are pushing for the construction of the peripheral canal and the passage of a $11.1 billion water bond.

Delta and fish advocates believe that the water bond, combined with the water policy package passed by the California Legislature in November, creates a clear path to the construction of the peripheral canal and Temperance Flats and Sites reservoirs. The canal will cost $23 billion to $53.8 billion to build at a time when California is in its worst economic crisis since the Great Depression - and the budgets for teachers, game wardens, health care for children and state parks have been slashed.