[env-trinity] Fresno Judge Halts Protection Plan For Winter Run Chinook
danielbacher at fishsniffer.com
Fri Feb 5 20:51:52 PST 2010
Photo of winter run Chinook salmon in tank by DFG.
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 "Darth Vader" of California water
politics, 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
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,
according to Nelson.
"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/
The state's position is in conflict with other state laws, including
regarding salmon protection, as Nelson explains here: http://
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 specificially 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
“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 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.
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