ESA news from the Bay-Delta: Judge Wanger rejects current biological opinion, while vocal constituents reject the Bay Delta Conservation Plan alternative
DELTA SMELT CONSOLIDATED CASES, Memorandum Decision Re; Cross Motions for Summary Judgment, (E.D.Cal., Dec. 14, 2010)(Wanger, J.)
Case Nos. 1:09-cv-00407 OWW DLB, 1:09-cv-00480-OWW-GSA, 1:09-cv-00422-OWW-GSA, 1:09-cv-00631-OWW-DLB, 1:09-cv-00892-OWW-DLB
BACKGROUND: These consolidated cases arise out of the continuing war over protection of the delta smelt (Hypomesus transpacificus), an ESA-threatened species, and associated impacts to the water supply for more than half of the State of California. The United States Fish and Wildlife Service’s (“FWS”) issued a new delta smelt biological opinion on December 15, 2008 (“2008 Smelt BiOp” or “BiOp”). This BiOp concluded that proposed Central Valley Project (CVP) and State Water Project (SWP) operations are “likely to jeopardize the continued existence of” the delta smelt and “adversely modify” its critical habitat. The BiOp includes a required Reasonable and Prudent Alternative (“RPA”) designed to allow the projects’ continued operations without causing jeopardy to the species or adverse modification to its critical habitat. The RPA includes operational components designed to reduce entrainment of smelt during critical times of the year by controlling (limiting) water exports from the Delta by the Projects.
CONCLUSION: It cannot be disputed that the law entitles the delta smelt to ESA protection. It is significant that the co-operator of the Projects, DWR, in its endeavors to protect a substantial part of the State’s water supply, opposes as unjustified and based on bad science some of the RPA Actions. It is equally significant that despite the harm visited on California water users, FWS has failed to provide lawful explanations for the apparent over appropriation of project water supplies for species protection. In view of the legislative failure to provide the means to assure an adequate water supply for both the humans and the species dependent on the Delta, the public cannot afford sloppy science and uni-directional prescriptions that ignore California’s water needs. A court is bound by the law. Resource allocation and establishing legislative priorities protecting the environment are the prerogatives of other branches of government. The law alone cannot afford protection to all the competing interests at stake in these cases.
EXCERPT (one tiny piece of a 225-page opinion ): Plaintiffs complain that the “Justification for Flow Prescriptions in Action 1” section does not represent the best available science because it is based upon analyses of gross (or “raw”) salvage (i.e. the absolute number of fish salvaged over a given time period). The use of raw salvage data, as opposed to salvage data scaled to population size, is problematic because raw salvage figures do not account for the size (or relative size) of the smelt population. The BiOp admits as much, and concedes that the analysis assumes that “as the population of Delta smelt declined, the number of fish at risk of entrainment remained constant.” BiOp at 349. Considering raw salvage numbers alone provides no means of distinguishing an event in which 10,000 fish are salvaged out of a population of 20,000 from an event in which 10,000 fish are salvaged from a population of 20 million... FWS nowhere explains its decision in the BiOp to use gross salvage numbers in Figures B-13 and B-14, and does not explain why it selectively used normalized salvage data in some parts of the BiOp but not in others. This was arbitrary, capricious, and represents a failure to utilize the best available science in light of universal recognition that salvage data must be normalized. This significant error must be corrected on remand.
SEE ALSO: New York Times, San Francisco Chronicle, and LA Times.
KEITHINKING: While Judge Wanger's decision reflects judicial rejection of the current state of affairs, ongoing efforts to find creative new solutions have also encountered obstacles and rejections. The Bay Delta Conservation Plan, a federal and state initiative, represents an attempt to redefine the regional water distribution systems in a manner that also protects native species for the next 50 years. The grandiose Plan even proposed a massive tunnel, moving Sacramento River waters around the delta region while avoiding young delta smelt from being drawn into the surface water pumping stations. See the Highlights of the BDCP (Dec. 2010). Potential costs for the proposal exceed $14 billion over 10 years, and billions more thereafter. See FAQs. And criticism of the plan is intensifying. See New York Times. In a press release, four leading conservation groups declared the Plan's documents "deeply flawed, incomplete, and disappointing." Meanwhile, the President of the Westlands Water District, an important project participant, constituent, and funding source says “We were sold a bill of goods once again by the federal government.”
Judge Wanger said it: "The law alone cannot afford protection to all the competing interests at stake in these cases." And unfortunately, with the Bay Delta Conservation Plan in crisis, the competing interests are refusing to compromise. So with the judiciary unhappy, the executive branch failing, and the California legislature equally unlikely to find an acceptable compromise, where do we go from here?
Together, the Sacramento-San Joaquin River Delta and San Francisco Bay comprise the largest estuary on the West Coast. The Bay-Delta is the hub of California’s water-delivery system, a source of water for more than 20 million Californians and for millions of acres of farmland in the San Joaquin Valley, and habitat for hundreds of species of wildlife, including the threatened Delta smelt, which spends its entire one-year lifespan in the estuary. In addition, winter-, fall- and spring-run salmon migrate through the Delta on their way to spawn in Central Valley rivers. Map and caption information from USGS.