[env-trinity] Fresno Judge Halts Protection Plan For Winter Run Chinook

Dan Bacher 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  
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,  
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  
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 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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