Federal Judge Tosses Plan to Export More Delta Water
By Dan Bacher
t r u t h o u t | Report
Friday 18 April 2008
Fresno - On April 16, Federal Judge Oliver Wanger tossed out a controversial
federal plan that would have allowed more pumping of water from the imperiled
California Delta at the expense of five species of protected Chinook salmon
and steelhead trout.
Recreational fishing, commercial fishing, conservation groups and the Winnemem
Wintu Tribe celebrated the ruling as a victory for the millions of Californians,
who depend on the delta for drinking water, fishing jobs and agriculture. The
Sacramento-San Joaquin River Delta is the largest and most significant estuary
on the West Coast - and increased state and federal exports to subsidized agribusiness
and southern California, in recent years, are a key factor in the collapse of
Sacramento River salmon.
In his opinion, Judge Oliver W. Wanger relied on the National Marine Fisheries
Services' (NMFS) own finding that diverting water from the bay-delta was killing
huge numbers of salmon. He said, "This morbid projection is inconsistent,
if not irreconcilable" with the agency's opinion that the project operations
did not jeopardize the survival of the fish. He also faulted the agency for
failing to analyze the effects of global warming on the fish, calling that failure
"arbitrary and capricious."
"How extirpation of approaching one-third of the species affected by Project
operations does not constitute jeopardy is not explained," said Wanger.
"NMFS's no jeopardy conclusion for the Project operations' effects on the
spring-run Chinook is expressly contradicted by underlying data and opinions
of the BiOp."
The ruling that throws out a 2004 longterm water plan, known as OCAP (Operating
Criteria and Plan), comes in the wake of the federal Pacific Fishery Management
Council's April 10 decision to cancel this year's commercial and recreational
salmon fishing season because of an unprecedented collapse of Sacramento River
Chinooks. The California Fish and Game Commission on Tuesday unanimously voted
to close state waters in conformity with the federal body's decision.
The Commission will decide on whether or not to close salmon season on Central
Valley rivers at its meeting in Monterey on May 9. However, it is extremely
likely the Commission will close salmon fishing on the Sacramento, American,
Feather, San Joaquin, and other rivers in conformance with the PFMC's "zero
take" allowance for the dwindling salmon population.
Earthjustice attorney Mike Sherwood, the same attorney that litigated to get
winter run Chinook salmon protected under the federal Endangered Species Act
in the early 1990s, also litigated this case successfully.
"With his decision today, Judge Wanger has placed salmon survival back
at the center of California's struggle to protect our natural heritage,"
said Sherwood. "There are several man-made factors that have contributed
to the collapse of salmon runs. One factor is pumping too much of our water
from the delta and exporting it south. This ruling makes it clear that there
are biological limits to the amount of water we can export south."
"The teachings of our Spiritual Leaders and our inherent cultural beliefs
- that the salmon are our relatives, are sacred and necessary for the continuation
of life - makes us feel happy and sad on this day," said Gary Mulcahy,
governmental liaison for the Winnemem Wintu Tribe, after hearing of the historic
decision. "We are happy that the salmon - who cannot speak for themselves
- had friends, allies and warriors to step up on their behalf and because of
that they may yet have a chance to continue in the cycle of life. We are sad
that it had to come to this and the near extinction of our relatives before
it was acknowledged that the people who had the responsibility to actually protect
them were in fact responsible by intentional manipulation and misstatement of
facts for their near total extinction."
He emphasized, "But, has that not been the case throughout water management
in California? Nothing seems to be important to those that want to take, except
how much more they can get. We thank Judge Wanger for not letting this one pass."
---------
The following is a press release from Earthjustice, followed by key quotes from
the historic decision:
Biological opinion for salmon and steelhead in California groups say
delta water project operations must protect water supply for fish and people.
April 16, 2008
Fresno, California - A federal judge has invalidated a water plan that would
have allowed more pumping from the San Francisco Bay Delta at the expense of
five species of protected salmon and steelhead trout. Fishing and conservation
groups and a California tribe called the ruling a victory for the millions of
Californians who depend on the delta for drinking water, fishing jobs and agriculture.
The ruling comes in the wake of federal fisheries managers' unprecedented April
10 decision to cancel this year's salmon fishing season because of a record
decline in spawning fish.
The decision is the second time the court has ruled that water export plans
would harm the threatened estuary. The court scheduled a conference on April
25 for the parties to address developing interim remedies to protect the fish.
In his opinion Judge Oliver W. Wanger relied on the National Marine Fisheries
Services' (NMFS) own finding that diverting water from the bay-delta was killing
huge numbers of salmon. He said, "This morbid projection is inconsistent,
if not irreconcilable" with the agency's opinion that the project operations
did not jeopardize the survival of the fish. He also faulted the agency for
failing to analyze the effects of global warming on the fish, calling that failure
"arbitrary and capricious."
The court also cited NMFS' findings that "current operations result in
the loss of 42 percent of the juvenile winter-run Chinook population, and proposed
project effects are expected to result in an additional 3 to 20 percent loss
of the juvenile population."
NMFS also found that proposed water project operations would kill as many as
66 percent of Central Valley steelhead and 57 percent of juvenile spring-run
Chinook salmon - likely leading to the extirpation of the spring run in the
Sacramento River and steelhead in the Central Valley. These findings, the court
ruled, are the "diametric opposite" of the finding that the projects
would not jeopardized listed salmon species.
"When most of our native fish species are struggling to survive, the water
project's plans to eliminate habitat, reduce cold water flow requirements and
increase delta exports made no sense," said Dr. Christina Swanson, a biologist
with The Bay Institute, a plaintiff in the case. "Ecological collapse in
our rivers and in the delta is not just bad for fish, it's bad for the millions
of people who depend on delta water for farming and drinking."
The plaintiffs challenged a 2004 longterm water plan known as OCAP (Operating
Criteria and Plan) that would have allowed increased exports south of the delta
by reversing many of the decade-old protections credited with saving endangered
winter-run Chinook salmon from extinction, including relaxing cold water flow
requirements and eliminating nearly half of the available spawning habitat in
the Sacramento River. These operational changes have corresponded with significant
declines in protected Chinook salmon populations since 2004. This year's salmon
run has largely failed to show up.
"Salmon need cool, clean water," said Kate Poole, a senior attorney
with the Natural Resources Defense Council (NRDC), a plaintiff in the case.
"Meeting their needs can keep clean water flowing from our taps as well,
without losing our salmon fishing industry."
"We've never seen the Sacramento salmon return as bad as this year,"
said Zeke Grader, executive director of the Pacific Coast Federation of Fisherman's
Associations, a plaintiff in the case. "California's water projects must
be operated in a way that helps protect these commercially important species,
rather than driving them to extinction."
The court's ruling follows an August 31, 2007 decision to protect the delta
smelt. In that ruling the court ordered state and federal water managers to
reoperate the giant pumps that draw water from the delta to supply farms and
cities in the San Joaquin Valley and Southern California. The fishing and conservation
groups say keeping enough fresh water in the delta is vital to protecting the
fragile ecosystem.
Biologists have grown alarmed in recent years about a cascading series of crashing
delta fish populations; salmon, steelhead, delta smelt, striped bass, longfin
smelt, sturgeon and Sacramento splittail are all in trouble.
"With his decision today, Judge Wanger has placed salmon survival back
at the center of California's struggle to protect our natural heritage,"
said Mike Sherwood, an attorney from Earthjustice who represented the coalition
of fishing and conservationists. "There are several man-made factors that
have contributed to the collapse of salmon runs. One factor is pumping too much
of our water from the delta and exporting it south. This ruling makes it clear
that there are biological limits to the amount of water we can export south."
The Delta's fragile ecosystem and drinking water supplies already face severe
pollution threats from agricultural pesticides and dairy waste," said Sejal
Choksi, program director for San Francisco Baykeeper. "Today's ruling is
a huge step forward in restoring our Delta to a healthy state."
The court will now schedule hearings to establish an interim salmon protection
plan for project operations. Agencies predict that a new biological opinion
for salmon will be complete by December 2008.
Conservationists say water managers could restore the delta by following the
advice of the state's own master water plan, which identifies conservation,
water recycling and better groundwater management as the biggest, cheapest sources
of untapped water supply.
Background
Prior to construction of the state and federal delta water pumping systems,
Chinook (or "king") salmon and steelhead were abundant in the Sacramento
and San Joaquin River systems. Sacramento River salmon were of great cultural
and spiritual importance to the Winnemem Wintu Tribe and remain a major economic
contributor to northern California.
As a part of the pumping projects, a necklace of dams was constructed up and
down the western slope of the Sierra Nevada on every major river flowing into
the Sacramento and San Joaquin Rivers, blocking the upstream migration of Chinook
salmon and steelhead to and from their historic spawning grounds. Of the 6,000
miles of historic steelhead spawning grounds, today only 300 miles remain. Friant
Dam on the San Joaquin River resulted in the extinction of the spring-run Chinook
salmon in that river. Shasta and Keswick Dams on the Sacramento River blocked
the winter-run Chinook salmon from their historic spawning grounds, forcing
them to spawn in a 40-mile stretch of less favorable river habitat below those
dams.
Every year, the pumping of huge volumes of fresh water out of the Sacramento-San
Joaquin River delta sucks in and grinds up juvenile salmon and steelhead as
they attempt to migrate down the rivers and though the delta on their way to
the ocean. As a result, Sacramento River winter-run Chinook salmon, Central
Valley spring-run Chinook salmon and Central Valley steelhead populations have
plummeted from historic abundance and all three species are protected under
the federal Endangered Species Act.
In August 2004, federal scientists charged with reviewing the plan to increase
pumping to 8 million acre feet concluded that doing so would illegally jeopardize
protected salmon. However, after political interference, the agency flip-flopped
and released a final opinion in October 2004, that concluded the project operations
plan would not harm listed salmon and steelhead species. But after several negative
independent science reviews and widespread concern over inappropriate political
influences on the opinion, the US Bureau of Reclamation and the State Department
of Water Resources asked NOAA Fisheries to reconsider the plan in April/May
2006. Yet, the agencies continued to implement the new plan without any lawful
analysis of its impacts to listed fish species while a new opinion is written.
The plaintiff coalition that launched the legal challenge includes: Pacific
Coast Federation of Fishermen's Associations, the Institute for Fisheries Resources,
The Bay Institute, Baykeeper, California Trout, Friends of the River, Natural
Resources Defense Council, Northern California Council of the Federation of
Fly Fishers and the Winnemem Wintu Tribe.
Read the decision online here: http://www.earthjustice.org/library/legal_docs/salmon-decision-41608.pdf
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Key quotes from decision:
Page 97, line 9 through 20
NMFS AR 5935 NMFS then goes on to state "[w]e expect that proposed operations
will continue the decline of the mainstream (Sacramento River) population and
likely lead to its extirpation." NMFS AR 5935 (emphasis added). This morbid
projection is inconsistent, if not irreconcilable, with "no jeopardy,"
which is expected to result from reduction of mainstream juvenile population
by 25%. Recovery is not addressed. In practical terms this forecasts elimination
of spring run salmon from the Sacramento River, a total loss of habitat, despite
the NMFS conclusion there will be no adverse impact or jeopardy to the species
or its nonexistent "critical" habitat, as to which NMFS nonetheless
concluded "none will be affected." It is unexplained why NMFS concludes
in October 2004, the spring-run have no critical habitat, but designate critical
habitat in September, 2005. This omission to address critical habitat for spring-run
under the ESA is equally applicable to CV steelhead. (a) Critical
Page 101, lines 14 through 25
The text of the BiOp speaks not of jeopardy as defined by regulation 50 C.F.R.
§ 402.02, but of extinction of the spring-run Chinook in the Sacramento
and Feather Rivers. How extirpation of approaching one-third of the species
affected by Project operations does not constitute jeopardy is not explained.
NMFS's no jeopardy conclusion for the Project operations' effects on the spring-run
Chinook is expressly contradicted by underlying data and opinions of the BiOp.
NMFS's inability to specifically define the spring-run's critical habitat, yet
reach the conclusion that Project operations will have no adverse effect on
such undefined habitat "because there is none" is a non sequitur.
The BiOp as to spring-run is incomplete, contradictory, and violates the ESA
and APA because it has: (1) failed to define and consider effects on spring-run
critical habitat, an important aspect of a no jeopardy § 7 BiOp; (2) failed
to explain why the no jeopardy findings are contradicted by record evidence
developed by the agency; and failed to adequately analyze recovery of the spring-run.
Plaintiffs' motion for summary judgment on this issue is GRANTED. Federal Defendants'
cross-motion for summary judgment is DENIED.
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