California Sportfishing Protection Alliance Advisory - 3.07.07

Court Decision a Victory For ESA Listed Fish

Background: After nearly a year of legal engagement, the Alameda County Superior Court has ruled in favor of CSPA's arguments that the Department of Water Resources (DWR) must have a "take permit" under the California Endangered Species Act if they are to continue pumping water out of the Delta. The court reached this decision based on the California Endangered Species Act requirements to protect listed species (primarily Winter-run & Spring-run salmon, steelhead and Delta Smelt) that are being killed by DWR's State Water Project export operations. The Court gave them 15 days for respond to the Court's decision and 60 days following that obtain a permit from the California Department of Fish & Game. The public response from DWR to the news media was that the timeline established by the Court could not be met.

I find this response stunningly arrogant. If we go back to the legislative hearing of August 2005, the State Legislature's Senate Natural Resources Committee made it clear DWR should obtain a real permit instead of the "patchwork" of alleged agency agreements that DWR contends would satisfy state law. They argued that they have put more water into the system and tried to make things better for the fish. The problem is that the amount of water exported out of the system has reached some of the highest levels in history while significant declines of critical elements of the foodweb and certain pelagic fish (including striped bass, Delta smelt and threadfin shad) have collapsed to the lowest levels in history. Obviously, killing listed salmon have not help to recover these species as well.

In March 2006 we filed a sixty day notice of intent to sue to inform DWR that, given the dire conditions of many fish dependent on the Delta, they needed to get a permit that would include mitigation requirements for the listed fish they would kill by exporting water out of the Delta. True to our word, we commenced legal proceeding in October when they failed to apply for a permit. For years such losses had been taking place without programs dedicated to offset them and it was high time for state agencies to comply with state law.

From our perspective, they've had almost a year to work with the Department of Fish and Game to get the "take permit" that would include reasonable mitigation. Now they say they don't have enough time during the next 73 days to get a permit! It seems that this would all depend on how they decide to use their time! It's not our fault if they chose to believe the spin they put on their own inaction.

Because they alleged they will not have enough time, they are raising the scepter of having to shut the pumps down and fueling the rhetoric about the catastrophic impacts this would have to the people who need the water and the state's economy! When they return to court in 12 days, we expect them to put this argument before the court in an effort to get the court to stay the ruling or to significantly extend time lines for compliance. We wouldn't be surprised if they asked for a four or five year delay while they prepare the Bay-Delta Conservation Plan they begun working on with DFG so it could address such issues while ensuring "no surprises" in exports cuts to their contractors.

We hope the court stands firm! Below you will find several articles on the court ruling.

John Beuttler CSPA Conservation Director 1360 Neilson Street Berkeley, CA 94702 510-526-4049 JBeuttler@aol.com

Judge says Delta pumps may have to shut down Endangered species ruling may cut off water to much of state

By Mike Taugher, MEDIANEWS STAFF Inside Bay Area

The state's largest water delivery system serving millions of people from he Tri-Valley to Southern California must shut down in 60 days unless water officials comply with the state endangered species law, a judge ruled.

The decision, which sent shock waves through water agencies up and down California on Friday, says state water officials failed to obtain a state permit to kill threatened or endangered salmon and Delta smelt.

Alameda County Superior Court Judge Frank Roesch ruled that the Department of Water Resources was violating the California Endangered Species Act but said he would delay turning off the pumps for 60 days to allow state agencies to comply. The ruling also said the 60-day clock will not start ticking until the ruling becomes final after a 15-day comment period. State officials said they would ask the judge to reconsider, arguing they are trying to develop a long-term conservation strategy and that shutting off the pumps would deal a devastating economic blow.

"I don't think it's possible to comply with what the judge says in 60 days," DWR director Lester Snow said.

Most major water agencies have sufficient backup water supplies to get them through a short pumping shutdown. However, if the permit required by the court's decision further restricts pumping, it could reduce the amount of water those agencies get in the long term.

At issue are massive pumps that supply water to more than 23 million people in Alameda County, Silicon Valley and Southern California. The pumps are powerful enough to alter the flow of rivers, disrupt fish movement and kill millions of fish each year.

Among those fish are species such as Delta smelt, winter-run salmon and spring-run salmon that are protected under state and federal endangered species laws. The pumping plant has a permit to harm endangered fish from the federal government, but not from the state.

Environmentalists say a state permit might force water supply cuts because the state law is more stringent than the federal law. The ruling does not affect smaller federal pumps that serve San Joaquin Valley farms.

Stan Williams, chief executive officer of the Santa Clara Valley Water District, said groundwater and access to San Francisco's Hetch Hetchy aqueducts would provide short-term backup water supplies but a prolonged shutdown could cause problems.

He added that he views the threat of a shutdown as plausible. "I think it's real," Williams said.

The general manager of the Metropolitan Water District of Southern California, the state water pumps' biggest customer, said he was disappointed in the ruling but added that emergency water reserves can meet the summer needs of its 18 million customers.

"What we need from Fish and Game is their best analysis of what they can do in 60 days and then see if that will satisfy the court," said Met general manager Jeff Kightlinger. "We're working rapidly on our contingency planning."

Environmentalists, meanwhile, were elated.

"It's a mind-buster. I'm stunned," said Bill Jennings, executive director of the California Sportfishing Protection Alliance, which filed the lawsuit last year.

The ruling comes at a time of deepening disarray in California water policy. The state's major water source, the Delta, is laboring five years into an ecosystem collapse that many scientists say is at least partly due to the water pumps. The failure of state water officials to obtain a permit for the pumps was uncovered in 2005 by a state Senate committee.

That committee's investigation was in response to a MediaNews report showing that in early 2005, just as the severity of the Delta's ecosystem crisis was becoming apparent, state and federal water officials twice overruled the advice of biologists appointed to enforce the federal endangered species law.

State water officials argued that even though they lacked a formal permit, a series of agreements and other documents dating back to the 1980s formed a "patchwork" of compliance with the law. The judge strongly disagreed, saying the documents "do not qualify as carte blanche authorization" to kill or harm endangered fish.

Michael Lozeau, the lawyer that represented environmentalists in the lawsuit, said the state endangered species law is stricter than the federal version. Under state law, the water resources department would have to offset the death of every protected fish, possibly by dramatically reducing pumping or improving habitat elsewhere in the Delta, Lozeau said.

"They have to replace every single fish," Lozeau said.

Jennings said that opens the door to force the state water department to make up for years of illegal operations.

"When you catch the embezzler, what do you do? You make them pay it back," Jennings said.

Stockton Record Judge Turns off the tap STATE HAS 60 DAYS TO GET PERMITS OR STOP PUMPS

By Alex Breitler March 24, 2007 Record Staff Writer

TRACY - State officials have 60 days to avert a legally imposed shutdown of their massive export pumps, which kill threatened fish but also support a $300 billion economy.

A judge's ruling released Friday says the Department of Water Resources has been incidentally killing fish at the pumps without proper environmental permits, in violation of state law. The state must shut down the pumps near Tracy if it cannot get the needed permits in time.

"Potentially, this is a huge victory," said Stockton environmentalist Bill Jennings, whose California Sportfishing Protection Alliance sued the state last year. "This is just the opening chapter of a new book."

State officials Friday afternoon said there's no way to get the needed permits in 60 days.

"We're perplexed with the court's ruling in this case," said Lester Snow, head of the Department of Water Resources. "We find the prospect of curtailment of pumping to be unacceptable." Snow said the state has 15 days to comment on the ruling by Alameda County Superior Court Judge Frank Roesch and ask for more time to comply.

A shutdown of the pumps is unlikely, Jennings said. However, getting a permit under state law to kill fish such as Delta smelt and salmon would require officials to find new ways to make up for that loss. That could include reducing exports or changing the timing of water deliveries to aid fish.

State Sen. Michael Machado, D-Linden, said it was no mystery to San Joaquin County residents that the pumps are operated without the proper permits. State officials have claimed that a series of agreements up to two decades old were tantamount to having such a permit.

"What this goes to show is that the ecosystem of the Delta is important and the state needs to follow its own laws," Machado said Friday.

No one disputes that the pumps are important. Eighteen million people in Southern California receive water imported from two major sources: the Colorado River and Northern California.

Drought on the Colorado has increased reliance on the Northern California flows, said Jeff Kightlinger, general manager of the Metropolitan Water District of Southern California.

"This is a very serious issue," he said Friday. "We're hopeful we can work with the state to get it resolved over the next 60 days and not go through dramatic interruptions."

The district has "tremendous" amounts of water in storage, but that's reserved for emergencies and could last only a year or two, Kightlinger said.

State water is also delivered to the Bay Area, cities and farms in the southern San Joaquin Valley and parts of the coast near San Luis Obispo. Altogether, the pumps support $300 billion of the state's $1.6 trillion economy, said the state's Snow.

The pumps also draw in threatened Delta smelt, which conservationists say are on the brink of extinction. They also harm juvenile salmon.

"They have to come up with near-term and long-term measures" to protect fish, Jennings said. "And we're going to be looking over their shoulder."

About the pumps ? Eleven giant state pumps near Tracy send water to the San Joaquin Valley and to Southern California, providing 30 percent to 70 percent of the water for 18 million Southern Californians. ? On a typical day, the machines, which send water down the California Aqueduct, could pump 5,000 cubic feet of water per second, enough to serve about 375 people for one day. ? A nearby federal pump house sends water into the Delta-Mendota Canal and on its way to Southern California. That pumping is not affected.

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