[env-trinity] Delta pumping process may spur lawsuit

Tom Stokely tstokely at trinityalps.net
Wed Mar 8 14:46:08 PST 2006



Delta pumping process may spur lawsuit 

Contra Costa Times – 3/8/06

By Mike Taugher, staff writer


California's largest water delivery system lacks the most basic permits required by the state's endangered species protection law, an association of anglers charged Tuesday in a formal lawsuit threat.


The notice of intent to sue the state Department of Water Resources comes as the population of one fish protected under the law, the Delta smelt, is severely depressed and other fish populations throughout the Delta also are plummeting.


At issue is whether the department's State Water Project, which delivers water from the Delta to more than 20 million people from Alameda County to Southern California, complies with the California Endangered Species Act.


"They have just fundamentally blown off CESA," said Bill Jennings, executive director of the California Sportfishing Protection Alliance, which filed the notice.


The threat is the latest sign that a decade of relative calm in California water policy could be giving way to a more bare-knuckled approach.

"I think those days (of cooperation) are over," Jennings said.


Environmentalists, anglers and others blame the state-owned pumps in Byron and smaller pumps owned by the federal government in Tracy for an ongoing decline among Delta fish species. The decline appears to have dramatically worsened in recent years.


Scientists are still trying to determine the cause but say the pumps could be a contributor.


The fact that the State Water Project has no permits or other formal documentation required by the state endangered species law was first determined last August by a state Senate committee.


The Senate Natural Resources and Water Committee's inquiry was prompted by a report in the Contra Costa Times that showed on two occasions last year that biologists were overruled when they recommended temporarily curtailing pumping to protect the smelt.


On Tuesday, DWR deputy director Jerry Johns said that although the State Water Project does not have formal state-issued permits, a series of other documents give it a "patchwork" of compliance.


"We think we are in compliance," Johns said. "We have a federal (document with a permit) and we meet once a week with biologists, including the state biologists, to make changes for Delta smelt."


The documents in that patchwork include a 1986 agreement designed to offset losses of striped bass, salmon and steelhead at the pumps and a 1995 amendment that Johns said expanded the earlier agreement to include Delta smelt and other fish species.


The documents do not make it clear that they are meant to serve as compliance for the state endangered species law.


Terry Erlewine, general manager of the State Water Contractors, which represents water agencies that take water from the project, also said those earlier documents mean the state water department is complying with the law.


Nevertheless, the Department of Water Resources and the Department of Fish and Game are attempting to develop a new species conservation plan authorized under the state law.


Although the State Water Project has similar permits from federal agencies, Jennings and lawyer Michael Lozeau said the state law is more stringent.


Jennings and Lozeau said this is because the federal law requires state water managers to simply develop reasonable alternatives that prevent jeopardizing the existence of fish species. The state law, they said, requires the state to fully "mitigate," or offset, the losses of fish.


"That means the species is not any worse off after the project than before," Lozeau said. "We're seeing this blatant violation by DWR because they don't want to hear what Fish and Game has to say about full mitigation. We think that will have very substantial (protections) for these fish."


Johns said the state law would require the department to fully offset the loss of fish only to the extent that it affects the overall population, he said. 


And, he said, it is difficult to tell whether the state pumps are affecting population levels.


The sportfishing organization's notice said that it intends to sue after 30 days, but added it is willing to discuss a way to settle the case first. #




Anglers say they may sue; Group wants protection for fish dying at pumps

Stockton Record – 3/8/06

By Warren Lutz, staff writer


STOCKTON - A sportfishing association says it will sue state water officials if they don't prevent the loss of endangered and threatened fish species at pumps that deliver water to 23 million Californians.

The Department of Water Resources is violating state law, because it never got the permits required to take the thousands of Delta smelt and chinook salmon that die at the pumps near Tracy every year, the California Sportfishing Protection Alliance said Tuesday.

"The (department) and the Department of Fish and Game have essentially ignored the requirements of the California Endangered Species Act," said Bill Jennings, the group's chairman.


The plight of the smelt and other plummeting fish populations in the Delta is of increasing concern to environmentalists, anglers, scientists and politicians.

The tiny, translucent, blue fish, seen as an indicator of the entire Delta estuary's health, are listed as threatened under the federal and state endangered species acts. Early results from a California Fish and Game trawl survey show that their population is at its lowest level since the surveys began in 1967.

Department of Water Resources Deputy Director Jerry Johns acknowledged the state never applied for the so-called incidental take permits that allow the killing of fish at the pumps.

Last year, a team of scientists identified exports that deliver water to homes and farms south of the Delta as a possible cause for the smelt's decline. Environmentalists blame higher water deliveries from the Delta during the winter for taking an unexpectedly high toll on Delta fish.

But agreements with the Department of Fish and Game allow the pumping arrangement to continue without violating state law, Johns said.

"From a legal standpoint, we're covered under both the federal Endangered Species Act and the state Endangered Species Act," Johns said. "But evidently, someone doesn't think that."

Jennings said such agreements don't hold water.

"Unfortunately, a wink and a back-room handshake doesn't comply with the statutory requirements of the (state law)," he said.

A Department of Fish and Game spokesman referred questions regarding the controversy to the Department of Water Resources.

The California Sportfishing Protection Alliance said it will sue to enforce state law if the state does not comply within 30 days.

The state's failure to get permits for fish lost at the pumps emerged last year during a California Senate Committee on Natural Resources and Water hearing.

At the hearing, committee Chairman Michael Machado, D-Linden, said he found the arrangement between the Department of Water Resources and the Department of Fish and Game troublesome, despite the "patchwork of agreements" the two agencies had with each other.

Machado said he believes that water exports have been a factor in the decline of several Delta fish species, including the smelt, and that the state should have obtained permits.

"If you had incidental take permits, you would have benchmarks where you would monitor the activities of the pumping," Machado said. "That may have very well led to alterations in the way that system was run."

In response to a public-records request in December, the Department of Water Resources told a California Sportfishing Protection Alliance attorney it had no record of applying for an incidental take permit, nor did it have any documents showing that the pumps' effects on fish were consistent with the state's Endangered Species Act.

"All indications are they never bothered to comply with the statute," said Mike Lozeau, a California Sportfishing Protection Alliance attorney. #


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