U.S. District Court Judge moves Sacramento delta one step closer to reinventing regional water management
Pacific Coast Federation of Fishermen v. Gutierrez, 1:06-CV-00245 OWW GSA (E.D.Cal., July 18, 2008)(Judge Wanger)
PROCEDURAL BACKGROUND. A memorandum decision and order, issued April 16, 2008 as amended May 20, 2008, granted in part and denied in part Plaintiffs’ Endangered Species Act (“ESA”) challenges to the 2004 biological opinion (“BiOp”) issued by the National Marine Fisheries Service (“NMFS”) on the effects of coordinated operation of two of California’s largest water projects, the federal Central Valley Project (“CVP”) and the State Water Project (“SWP”), on the endangered Sacramento River winter-run Chinook salmon, the threatened Central Valley spring-run Chinook salmon, and the threatened Central Valley steelhead. Plaintiffs move for injunctive relief. The parties submitted briefs and evidence on whether the species’ would be placed in jeopardy or their critical habitat threatened with adverse modification or destruction until such time as the new BiOP is released. While the proceedings were in progress, Plaintiffs moved for emergency injunctive relief, suggesting the immediate implementation of a number of interim remedies was necessary to prevent jeopardy.
The geographic distribution of winter-run Chinook salmon spawning is currently limited to the mainstem Sacramento River in the reach from Keswick Dam to Red Bluff Diversion Dam (RBDD), pictured above. However, the actual distribution of spawning and egg incubation within the reach varies among years in response to water temperatures, adult abundance, and other factors. The RBDD is comprised of eleven gates across the Sacramento River that, when lowered, raise the elevation of the river to allow water to flow by gravity into the Tehama-Colusa and Corning Canals, where water is distributed mainly to agricultural users. Early fish studies at RBDD demonstrated that the closure of RBDD’s gates created a barrier to fish passage, resulting in delayed migration, disorientation of juveniles, and increased mortality. Based on the results of these earlier studies, RBDD gate operations have been modified over time to reduce the seasonal period when the gates are closed. Photo from U.S. Bureau of Reclamation, Sacramento River Division.
RULING: "The Court concluded, for each of the three species in question, that all three salmonid species are not viable and are all in jeopardy of extinction. NMFS' biologist testified that a species that is not viable is 'almost extinct or on the verge of being extirpated.' ... All three experts agreed that extinguishing or reducing any single population within any of the three ESUs would diminish the ESU's viability and increase the risk of extinction. Based on two drought years, with critically dry hydrologic conditions in 2008, and the presently unpredictable risk of a third dry year, the three species are unquestionably in jeopardy. The ESA does not permit jeopardy to a listed species to be considerably increased during a BiOp reconsultation. Project operations through March 2009 will appreciably increase jeopardy to the three species."
EXCERPT RE: REMEDIES: NMFS shall complete the new BiOp on or before March 2, 2009... If the BiOp and its incidental take statement are vacated, the Bureau and DWR could be compelled to completely stop Project operations if they incidentally take one of the endangered species. Inoperative Projects would not maintain the status quo, but would instead produce catastrophic results to the public and all parties in interest. Plaintiffs, responsibly, have not suggested shutting down the Projects.
ADDITIONAL EXCERPT: "It is undisputed that Project operations over the next eight months will increase mortality of eggs, fry, and juveniles of all three species. Each species’ spatial distribution, diversity and abundance, will be reduced... Existing hydrology and operational conditions will adversely modify critical habitat to an unquantified degree and reduce the three species’ prospects for long term recovery... Federal Defendants have not met their burden of proving that Project operations will not appreciably diminish the three species’ present states of non-viability and nonrecovery and will not adversely affect the species’ remaining critical habitat over the next eight month period... Because irreparable harm will likely result during the interim period, the standard for equitable relief has been met. Whether interim remedies are necessary remains to be addressed."
KEITHINKING: The plight of the salmonids and Delta smelt in the Sacramento Delta has often appeared in the postings here on ESA blawg. Inevitably, as Judge Wanger's rulings (and injunctions) continue to indentify the ESA-related consequences of operations of the State Water Project and Federal Central Valley Project, policy makers will be forced to explore new solutions to managing water in the region. But for now, Judge Wanger continues to give this matter his thorough attention, as this 118-page order suggests, and the parties will soon be debating interim remedies. The Plaintiffs in this case have proposed specific changes to the regional water management regime to adjust flow rates and temperatures to benefit salmonid species, but meeting those demands will probably lead to reduced water supplies for the regional water users. Whatever the outcome of this case (and any future policy debates), given the conflicting needs of people, agriculture, and species, any and all changes will be difficult and controversial. FULL DISCLOSURE: The author previously appeared as counsel for the Department of Justice in this matter.
SEE THE NEWS COVERAGE in the San Francisco Chronicle("curtailing water diversions means cutting back on the flow of drinking water for 25 million Californians and irrigation for 750,000 acres of cropland. California's state and federal water project was established about 100 years ago and is an integral part of the state's infrastructure. Changing it would become a political football up and down the state, affecting the economy as well as the environment.") and the Red Bluff Daily News ("This case, along with a recent similar case filed by the same parties regarding smelt, could potentially revamp the entire system of water distribution in California. The state's water delivery systems were built decades before the ESA was signed into law and did little if anything to protect fish, including the three species of salmon contingent upon the lawsuit.")
MORE RESOURCES: A 2008 report by the Public Policy Institute of California (PPIC), entitled Comparing Futures for the Sacramento-San Joaquin Delta examines the policy alternatives, including: (1) continue pumping exports through the Delta (the current policy), (2) divert water upstream and convey it around the Delta through a peripheral canal, (3) combine the current through-Delta pumping strategy with a peripheral canal (so-called “dual conveyance” or “dual facility”), and (4) end exports altogether. The report concludes that "time favors a peripheral canal and is unfavorable to other alternatives," and that "a peripheral canal is a necessary component of a long-term solution that serves economic and ecosystem objectives co-equally," however, the PPIC also acknowledges that "to be viable, a peripheral canal or dual conveyance would require effective governance, regulatory, and financing mechanisms." PPIC also issued a related, shorter research brief entitled Navigating the Delta: Comparing Futures, Choosing Options, and in 2007 issued another paper on the subject, Envisioning Futures for the Sacramento-San Joaquin Delta.