[env-trinity] Another judge agrees: Projects harm delta fish

Tom Stokely tstokely at trinityalps.net
Tue May 29 17:05:32 PDT 2007

Judge says better management of delta needed

Associated Press – 5/25/07

By Paul Elias, staff writer


SAN FRANCISCO - The government's management of the Sacramento delta runs afoul of sound science and a new management plan is needed for a region that supplies most of the state's water, a federal judge ruled on Friday. 


U.S. District Court Judge Oliver Wanger in Fresno said federal and state water agencies have failed to adequately protect fish called smelt when pumping water from the delta. He said he wanted a new plan proposed within 30 days. 


"The Delta smelt is undisputedly in jeopardy as to its survival and recovery," Wanger wrote in tossing out a 2005 pumping plan developed by federal scientists, who found the current program didn't jeopardize the fish. That finding was "arbitrary, capricious, and contrary to law." 


Giant pumps are constantly sucking water out of the delta and sending most of it to thirsty Southern California cities via an aqueduct visible along long stretches of Interstate 5. Lowered water levels in the delta are bad news for the smelt because their habitat often becomes warmer and saltier than they are accustomed. 


The Fish and Wildlife Service in July 2004 said the Bureau of Reclamation's water management plans would not jeopardize endangered and threatened delta fish. 


It renewed the scientific opinion in February 2005. 


The Natural Resources Defense Council and five other environmental groups sued the Fish and Wildlife Service in February 2005. The action followed the federal agency's ruling that said increases in state and federal pumping from the delta to benefit farmers and Southern California cities would not harm federally protected delta smelt. 


The environmentalists asked a federal court to invalidate that opinion, which Wanger did late Friday. "I think it sends a pretty clear message to the agency that they can't treat the delta like a piece of plumbing," said Earthjustice attorney Andrea Treece, who represented many of the environmentalists who sued.  #



Judge rules against water system; Action is another win for environmentalists concerned about how delta pumping operations affect the threatened native smelt

Los Angeles Times – 5/26/07

By Bettina Boxall, staff writer


For the second time this year, a judge has ruled that management of California's water system is illegally imperiling fish, making it increasingly likely that the state will have to pump less water from the Sacramento-San Joaquin River Delta to Southern California cities and Central Valley farms.

U.S. District Judge Oliver W. Wanger issued the ruling Friday and ordered a hearing for next week at which he could issue a stay in the case, forestalling any immediate effect on the pumping operation.

The ruling was another victory for environmentalists who have been attacking the state's delta operations on multiple legal fronts, arguing that water shipments are helping drive the once abundant native delta smelt to extinction.

"I think it certainly demonstrates we need to take a pretty hard look at what we're doing to this system and find other ways of meeting water needs than 'Let's pump the delta dry,' " said Andrea Treece, associate attorney for Earthjustice, which won the ruling on behalf of a coalition of environmental and sport-fishing groups.

"I don't think anyone is trying to get the pumps shut down. They're trying to save a species."

Wanger invalidated a U.S. Fish and Wildlife Service opinion that had concluded that the federal and state water operations did not jeopardize the survival of the tiny smelt, which is protected under the federal Endangered Species Act.

"The delta smelt is indisputably in jeopardy as to its survival and recovery," Wanger wrote in a 120-page opinion. 

The "no-jeopardy finding is arbitrary, capricious and contrary to law."

The fish and wildlife agency was already rewriting the opinion but is not expected to issue a new one until next year.

In a separate case this spring, a state judge threatened to turn off the delta pumps after finding that the state Department of Water Resources had not received proper authorization under the California Endangered Species Act to operate the pumping.

The state has obtained a stay in that case pending an appeal.

Meanwhile, the smelt's fate has grown more precarious. When researchers went looking for larval smelt last week, they caught 25, compared with 300 last year.

"The survey this year is much lower than we expected," said Jerry Johns, water resources deputy director.

But Johns argued it was wrong to blame the smelt's plummeting numbers entirely on the water operations.

"We've got to be looking at this from a broader standpoint," he said. 

Scientists suspect a number of factors besides the pumping are at play in the smelt's decline, including toxic contaminants in the delta and invasive species that are altering the waterway's food sources.

Johns said toxic levels of pesticides were found in the smelt's spawning waters this year. "This is the first time we've seen a toxic event like this," he said.

"You're going to get started on an immediate solution, but we need to turn the right knob. It's possible we turn the pumping knob and nothing happens to the delta smelt."

The court rulings are placing increasing pressure on one of the largest water diversion projects in the world. 

The pumps are so powerful they can reverse flows in the delta's water channels and have changed the balance of salinity in the delta, which empties into San Francisco Bay.

"I hope it's marking a turning point where we can force some real change in how this system is exploited," Treece said of the rulings. #




Another judge agrees: Projects harm delta fish

Contra Costa Times – 5/26/07

By Mike Taugher, staff writer


A federal judge Friday ruled that a permit allowing massive water delivery projects to be built in the delta is illegal because it fails to account for the risk posed to a species of tiny endangered fish. 


It is the second time in two months that a court has declared the state's water projects in violation of endangered species laws. 


The ruling comes the same week as a new study was released showing the delta smelt population has plunged closer to extinction. 


U.S. District Judge Oliver Wanger in Fresno did not immediately revoke water agencies' ability to operate, saying such a step would amount to a "draconian" impact on the state's farms and cities. 


However, his 120-page order seems likely to lead to cuts in the amount of water taken out of the Sacramento-San Joaquin River Delta for use in the East Bay, Silicon Valley, San Joaquin Valley and Southern California. 


At issue is a 2005 document issued by the U.S. Fish and Wildlife Service that is supposed to analyze the impact the water projects have on delta smelt and then set limits on those projects to ensure the fish does not become extinct. 


Wanger ruled that the document failed to include information that showed smelt populations were in very bad shape, and that it opted for a voluntary approach instead of setting firm requirements to protect the fish. The order said the Fish and Wildlife Service's document was too lenient to satisfy the Endangered Species Act. 


"I think it sends a pretty strong signal that the agencies have to comply with the law rather than just skate by," said Andrea Treece, a lawyer for Earthjustice who argued the case for environmentalists. 


The ruling is the latest development on the future of the delta ecosystem and the state's ability to sustain massive water deliveries. 


A separate lawsuit challenges the water projects' authorization to harm protected salmon runs. 


Last month, an Alameda County judge ordered the state-owned pumps shut off because no permit was ever issued under the state endangered species law. That order has been put on hold pending appeal. 


A spokesman for the federal water agency, the U.S. Bureau of Reclamation, said a new permit was in the works and scheduled to be completed by July 2008. 


"I don't know what happens in the meantime. We've never been here before," said the spokesman, Jeff McCracken. 


The state Department of Water Resources, which has now been told by two different courts that its water operations are in violation of both state and federal endangered species laws, had no comment. 


Wanger wrote in his order that he would hold a hearing on how to remedy the situation within 30 days. 


Treece, the lawyer, said environmentalists would press the judge and the water agencies to follow recommendations from scientists about how to protect the fish. 


"Maybe the agencies will start listening to their scientists now," she said. #




Judge: Smelt left unprotected; Delta pumping plan criticized in ruling

Fresno Bee – 5/26/07

By John Ellis, staff writer


Environmentalists are claiming victory after a federal judge in Fresno on Friday found a key opinion on the effects of water pumping in the Sacramento-San Joaquin Delta on the endangered delta smelt fish was "legally flawed." 


U.S. District Judge Oliver W. Wanger declined to impose any remedies until after environmentalists and the U.S. Fish and Wildlife Service confer on his decision. 


Still, Andrea Treece, a lawyer for the Natural Resources Defense Council -- the lead plaintiff in the case -- said "certainly reductions in [water] pumping are on the table." 


Wanger's decision will require the agency's opinion -- known as a "biological opinion" -- to be rewritten. That could affect those who depend on delta water deliveries, such as Southern California cities and the Westlands Water District. 


The Natural Resources Defense Council and five other environmental groups sued the Fish and Wildlife Service in February 2005 in response to the opinion by the agency. The opinion was assembled in response to a U.S. Bureau of Reclamation water management plan for the delta. 


In the 120-page decision, Wanger found the Fish and Wildlife Service didn't use the best-available scientific data or consider climate change in putting together its smelt impact report; failed to require any real-time protection for the tiny fish; failed to consider impacts to the smelt's habitat; and failed to analyze impacts on the smelt's overall population numbers. 


The decision wasn't absolute, however. In two areas, Wanger ruled against the environmentalists. 


"Overall, I think it certainly is a victory and hopefully a turning point in how agencies look at the delta and the way they approach its management," Treece said. "We hope this sends a very clear signal that they can't ignore the law anymore." 


Fish and Wildlife Service spokesman Al Donner declined to comment specifically on the lawsuit because agency attorneys have yet to review it. Still, Donner said, the service has been working since last summer on an updated smelt impact report that it hopes to complete in the near future. 


In an April hearing on the matter before Wanger, lawyers for the environmental groups claimed the agency had ignored 2004 data -- which showed a steep decline in the delta smelt population -- in favor of more favorable 2003 data when it was preparing the biological opinion. 


At stake is a federal Endangered Species Act permit that allows both state and federal water-delivery projects to operate. Smelt are killed in the operation of pumps that send delta water southward. 


While the agency works to update the opinion, Donner said, it also is working to help the delta smelt. Recent surveys, he said, show very small numbers of juvenile smelt, which is a concern. As part of that, he said, water pumping is at a very low level, which he said "should be good for the smelt." 


Environmentalists also have a parallel lawsuit -- in which similar legal arguments are being made -- involving the effects of delta pumping on steelhead and salmon.  #


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