CSPA Advisory 6.4.07

Fishery Scientists Renew Appeal to Save Delta Smelt

Highly respected fishery biologists Tina Swanson and Peter Moyle, both Ph.Ds, have again notified the state and federal water projects and fishery agencies that immediate action is essential if the delta smelt are to be saved. The actions they recommend would also be of valuable assistance to young of the year striped bass, longfin smelt, and threadfin shad whose populations have also been severely impacted by water projects and other diversions of water from the Delta and its tributaries.

Their request comes on the heels of action by the California Department of Fish & Game to protect the few smelt that remain in the system from destruction by the State and Federal Water Projects. On May 31st , DFG Director Broddrick notified DWR that due to increasing take of smelt by the projects, pumping should be stopped.

"While these conditions exist," wrote Broddrick, "we believe immediate and significant action on your part is warranted. These actions are as follows:

o Cease pumping water at the Harvey O. Banks facility, to maximum feasible extent consistent with health and safety;

o Maintain agricultural barriers in the south Delta in an open position".

The next day the Director of the Department of Water Resources, Lester Snow, shut the State Water Project pumps down saying: "Drastic times call for drastic measures. While there are clearly many factors at play in the current decline of smelt in the Delta, we must act on the one that is within our control. That is why DWR will stop pumping in the Delta as a preventative measure to protect endangered fish that are currently located near our facilities."

As of this writing, the federal Bureau of Reclamation is still exporting water from the Delta causing reverse flows that pull smelt into Old and Middle Rivers and into the federal export pumps near Tracy. The US Fish & Wildlife Service is charged with protecting the smelt under the federal Endangered Species Act. Their evisceration at the hands of Julie MacDonald, Assistant Secretary for Fish, Wildlife and Parks (an Interior Department agency) must have the Service still ducking, as they have not stepped up with a "Jeopardy Finding" that would stop the BOR pumps.

MacDonald recently resigned under a cloud of accusations (and some pretty good evidence) regarding her preempting the science in the Biological Opinions issued by the Service to protect listed species - a rather morally bankrupt way to achieve the administration's desired political outcomes. There is clear evidence she altered the Service's Biological Opinion on the Smelt to enable greater water export from the Delta.

Several days ago the federal court ruled that the US Fish and Wildlife Service's Delta Smelt Biological Opinion must be rewritten. Conservation groups sued the agency, arguing that Biological Opinion encouraged increased pumping while ignoring the steep decline in the fish's numbers and that it was not supported by science. The court agreed saying the document was arbitrary, capricious, and contrary to law.

So, why is such a little fish so important? Because it has become a surrogate for the health of the estuary. It was once an important forage species in the estuary's foodweb. Today, that foodweb looks more like Swiss cheese than an integral part of a viable ecosystem and the possible extinction of the smelt says volumes about what is happening to other fisheries. But, the ecosystem still has some life left.

More than two months ago, Swanson and Moyle sent their first letter to the state and federal fish and water agencies expressing their deep concern for the future of the rapidly declining smelt and urging the implementation of important changes in water project operations to fend off what clearly loomed as delta smelt extinction. They strongly supported the recommendations of the scientific team that was studying the Pelagic Organism Decline (POD) and urged the water projects to minimize the anticipated reverse flows in the southern Delta and take actions to increase the Delta outflow into Suisun and Honker Bays to avoid pulling the young smelt from the northwestern Delta into the pumping plants in the south Delta.

The Water Operations and Management Team that oversees the two projects heard the POD recommendations but declined to implement them! By early April it was extremely difficult to find smelt and it was estimated that the population was down at least 93% from the depleted population of the previous year. Yes, the pumping by the projects had pulled many of the smelt into the central and southern Delta. By mid May the remaining population had fallen to an all time low and the Delta Smelt Working Group of scientists called for "an emergency response" to prevent the water projects from pulling the remaining fish into the pumping plants.

The second Swanson - Moyle letter was issued several days ago and calls for establishing flow regimes that would move the fish that have been pulled into the central and southern Delta to the western Delta away from the pumping plant. To realize this objective would require increasing San Joaquin River flows for a ten day period to 3,500 cfs while significantly reducing exports. The authors note that this may be the last chance the projects have to reduce water project related mortality by helping the fish move to habitat where it can complete its life cycle and generate the fishery for next year. They also note this would help other fisheries that have been in decline including the striped bass and longfin smelt.

While the preceding is highly summarized, it is important to note that the collapse of smelt and other pelagic species had - until this point - has not significantly altered project operations. Just a few months ago we sued DWR for failing to obtain a permit under the California Endangered Species Act that would compel them to work with the DFG to mitigate the damage the State Water Project causes to this fishery. After we prevailed in the Superior Court decision, DWR appealed and bought time to continue pumping without an incidental take permit.

Since the BOR pumps water primarily to agriculture and much of it is going to corporate agriculture while the Delta is collapsing, perhaps it is time to rally the angling and environmental troops to call it like we see it! The federal Central Valley Project was paid for by tax payers to provide water to family farmers to grow food with the provision that the growers would pay back the cost of the project. Its been half a century and the public has yet to be paid back and many of the family farms have been replaced by corporate agribusiness.

Then, consider the crop subsidies for "King Cotton", rice and who knows what else along with the federal payments to not grow it! This certainly helped to make some very wealthy and politically powerful growers. Also recall that they don't pay the real cost of using the public's water the project delivers, as it is highly subsidized as well. Not all the growers share these "incentives", but it is more than a little disconcerting that these beneficiaries of public resources are also not paying their fair share to restore the fisheries water development has so egregiously damaged or driven to extinction. Perhaps worst of all, is the political payoff whereby campaign (and other) contributions are wielded into political power that drive public resource policies while our fisheries and the healthy ecosystem they require continue to decline and move closer to extinction.

It's time for all of us to raise our voice over what is happening to OUR fisheries. It's a fact that they are still owned by the public and provide substantially to our quality of life and to local, state and national economies. I recommend that you log onto http://www.water4fish.org/ and sign on to the petition endorsed by more than ten thousand anglers to fight back for saving and restoring our fisheries and urge your friends to do the same. The more anglers that sign on, the greater our political power. Without a strong political power base our fisheries will be lost. If your are not already a member, please consider supporting CSPA's conservation and legal efforts on behalf of the fight.

Below, are several related news articles and press releases for you review.

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

Water agency appeals pumping ruling

By Mike Taugher CONTRA COSTA TIMES

Article Launched: 05/08/2007 03:06:08 AM PDT

The state Department of Water Resources announced late Monday it was dropping efforts to get an endorsement of the flawed federal permits that allow giant pumps near Tracy to pull water out of the Delta.

Instead, the agency Monday appealed a court order to comply with the state's endangered species law by mid-June and embarked on a lengthy process that is not expected to produce a legal permit before next April.

The announcement amounts to a rebuff to the district court judge who ordered the agency to comply with the California Endangered Species Act and an acknowledgment of the impossible situation that the water agency finds itself in.

For years, the agency has failed to obtain a state permit to kill protected fish such as Delta smelt and some salmon runs. The fish are killed when the massive pumps pull trillions of gallons of water a year out of the ecologically sensitive waterway for use on Central Valley farms and for 25 million Californians from the East Bay down to Southern California.

Now, with a 60-day clock running down to get either permits from state regulators or a regulatory endorsement of federal endangered species permits, the agency has found that it cannot do either.

New state permits would take too long to prepare, and the federal permits are flawed. Nevertheless, state water officials until recently were trying to get an endorsement of the federal permits.

But those permits face an uncertain future. They are being rewritten, and last month a federal judge in Fresno hinted he was likely to rule in favor of environmentalists seeking to overturn one of them. "That discussion (about the direction the federal judge was headed) leads to additional uncertainty on how we should proceed," water resources department Director Lester Snow said.

State officials noted that when they appealed, they got an automatic stay of the lower court's order and bought time. They also noted that the California Sportfishing Protection Alliance, which brought the lawsuit, filed papers agreeing not to fight the stay. But the alliance's executive director, Bill Jennings, said his group has no alternative because the law makes the granting of a stay automatic.

"I think they're continuing in a state of denial as fisheries come closer to extinction," Jennings said. "It's not surprising. They've not come to the realization that significant modifications to the pumping regime is going to have to happen if we're going to save these fish."

#

Congressman George Miller, California's 7th District Monday, May 21, 2007

Miller and Rahall Launch Inquiry into New Conflict of Interest at Interior Department Senior lawmakers press Bush Administration on manipulation of science in a California endangered species decision

WASHINGTON, DC - Two senior House Democrats launched an inquiry today into reports that a Bush Administration political appointee may have improperly removed a California fish from a list of threatened species in order to protect her own financial interests. According to an investigative report published Sunday by the Contra Costa Times, Julie MacDonald, who resigned this month as Interior Department Deputy Assistant Secretary for Fish, Wildlife and Parks, was actively involved in removing the Sacramento Splittail fish from the federal threatened and endangered species list at the same time that she was profiting from her ownership of an 80-acre farm in Dixon, CA that lies within the habitat area of the threatened fish. MacDonald's financial disclosure statement shows that she earns as much as $1 million per year from her ownership of the 80-acre active farm. Federal law bars federal employees from participating in decisions on matters in which they have a personal financial interest.The Sacramento Splittail, a small fish found only in California's Central Valley, depends on floodplain habitat and has been described by the Fish and Wildlife Service as facing "potential threats from habitat loss." Today, Rep. George Miller (D-CA) and Rep. Nick Rahall (D-WV), chairman of the Natural Resources Committee, wrote to Interior Secretary Kempthorne requesting a full accounting of MacDonald's role in the Sacramento Splittail decision, an explanation of her apparent conflict of interest, and a thorough review of the science underlying the decision to remove the Sacramento Splittail from the threatened species list. "It looks like another Bush Administration official was protecting her own bottom line instead of protecting the public interest," said Miller, a senior member and former chairman of the Natural Resources Committee and a long-time proponent of the Endangered Species Act and Bay-Delta fish and wildlife issues. "We are going to fully investigate this matter and determine whether public policy was improperly altered because of personal conflicts of interest.

"This news raises serious questions about the integrity of the Interior Department and its policy decisions," Miller added. "The Sacramento-San Joaquin Delta has enough problems without political appointees at scientific agencies cooking the books. Who thought it was acceptable for a Deputy Assistant Secretary to change a major policy decision to exempt her own million-dollar enterprise from the Endangered Species Act even though federal law prohibits such conflicts?" Rahall, who has served on the Natural Resources Committee since 1976 and became its chairman in January, called on the Department to fully explain what happened. "Time and again, this Administration has demonstrated a complete disregard for scientists and their work," Rahall said. "Political appointees at the Interior Department have been allowed to overrule biologists and to work more closely with special interests than with their own staff. The Interior Department must explain its deputy assistant secretary's actions in this very troubling case, which is apparently the latest in a long line of efforts to undercut species recovery." The letter from Miller and Rahall comes just two weeks after a May 9 Committee hearing at which Deputy Interior Secretary Lynn Scarlett was questioned about recent controversies in the implementation of the Endangered Species Act. Her prepared testimony did not mention a report by the Department's Inspector General on an investigation into MacDonald, nor did her testimony indicate awareness of the serious consequences of MacDonald's actions. In the course of the hearing, Scarlett affirmed that "where there is scientific manipulation, we want to correct that," but no specifics were provided. MacDonald resigned from the Interior Department just one week before Scarlett testified. The Endangered Species Act established a policy of protecting and recovering species in decline and their habitats. Fish, wildlife, and plants listed as "endangered" are in danger of extinction and the federal government is required to take action to recover them. Species are listed as "threatened" if it is determined that they may soon become endangered. Other threatened species in the Bay-Delta region include the green sturgeon and the delta smelt.

FOR IMMEDIATE RELEASE: 5/25/07

CONTACTS: Kate Poole, NRDC 415-740-7716 (mobile) Brian Smith, Earthjustice at 510-550-6714 or 415-320-9384 (mobile)

FEDERAL JUDGE THROWS OUT "BIOLOGICAL OPINION FOR THREATENED DELTA SMELT:

Ruling Means State and Federal Water Projects May Be Required to Reduce Pumping to Protect Fish from Extinction, Say Conservation Groups

FRESNO, CA - A federal judge ruled today that a government assessment of the risk to threatened fish from massive pumps in the San Francisco Bay Delta is illegal and must be rewritten. State and federal water project managers relied on the "biological opinion" by the U.S. Fish and Wildlife Service (FWS) to justify increased water exports to farms and cities south of the delta. Conservation groups sued the agency, arguing that its conclusion that increased pumping wouldn't harm the delta smelt ignored a steep decline in the fish's numbers and was not supported by science.

"The delta smelt population has crashed to the lowest levels ever recorded," said Kate Poole, an attorney with the Natural Resources Defense Council (NRDC), a plaintiff in the case. "The smelt's dramatic drop coincides with the highest levels of freshwater diversions from the delta ever. That's not a coincidence. Yet the Fish and Wildlife Service concluded that increasing diversions even further would not jeopardize the smelt and other threatened and endangered fish. The agency's opinion doesn't pass the laugh test."

The U.S. Bureau of Reclamation, which operates the federally-owned Central Valley Project (CVP) and the California Department of Water Resources (DWR), which runs the State Water Project (SWP) used the wildlife's agency's opinion as justification to increase delta exports and to renew 25- and 40-year contracts to irrigation districts and urban water agencies.

But in his ruling, Judge Oliver W. Wanger of the U.S. District Court in Fresno wrote, "The Delta smelt is undisputedly in jeopardy as to its survival and recovery. The 2005 BiOp's 'no jeopardy' finding is arbitrary, capricious, and contrary to law.... The agency's failure to reasonably estimate the Delta smelt population and to analyze most recent smelt abundance data make the take limits based on historical data unreliable and unreasonable."

In 2005, delta smelt numbers were the lowest ever measured, just 2.4 percent of the numbers counted when the species was listed under the state and federal endangered species acts in 1993. Fish surveyors are having trouble finding any smelt at all this year, increasing concern that the fish are on the brink of extinction.

"The water project operators must decrease pumping," said Andrea Treece, an attorney with Earthjustice, which represented in the plaintiff conservation groups in court. "That's the commonsense solution to protecting smelt and other threatened and endangered species in the delta."

Scientists say that smelt are an indicator of the health of the entire bay delta ecosystem, and are representative of a much larger decline in native delta fisheries, including striped bass, longfin smelt, threadfin shad, and others. The delta is the largest estuary on the West Coast. It functions as the hub of California's water system, as a vital component in its fishing and agricultural economies, as a recreational mecca, and as home to millions of Californians.

The authors of a February 2007 report by the Public Policy Institute of California wrote, "Most Californians rely on the Delta for something, whether they know it or not." (The report, "Envisioning Futures for the Sacramento-San Joaquin Delta," is available online at http://www.ppic.org/main/publication.asp?i=671 )

The recent decline of the delta smelt coincides with huge increases in freshwater exports out of the delta by the state and federally operated water projects. Annual exports increased by 25 percent from 1994-1998 and 2001-2006, draining the delta of more than 1.2 million acre-feet of additional water. Annual exports in 2005 and 2006 were the first and third highest export levels on record. Wintertime exports have increased by 49 percent from 1994-1998 and 2001-2006, and springtime exports have increased by 30 percent. Delta smelt are particularly vulnerable during winter and spring, when pre-spawning and spawning adults move into the delta for reproduction, and larvae and juveniles move downstream to rearing habitat.

Recent research by a team of interagency scientists confirms that freshwater exports remains one of the primary causes of population decline of delta smelt and three other Delta fish species. Delta smelt abundance increased in the late 1990s when exports declined. But the species then crashed in the wake of the export increase in the 2000s. The State Water Project's long-term water management plan, known as "OCAP" ("Operations, Criteria and Plan"), proposes to increase exports by substantially more.

The lawsuit was filed by EarthJustice on behalf of NRDC, Friends of the River, California Trout, The Bay Institute.

Read the decision online here: http://www.earthjustice.org/library/legal_docs/decision-on-delta-smelt-b iop.pdf