On June 4, 2009, the National Marine Fisheries Service released a biological opinion that revised a previously invalidated BiOp. The purpose of the 2009 NMFS BiOp is to assess the impacts of water projects in the Delta on several listed species: winter and spring run Chinook salmon, green sturgeon, Central Valley steelhead, and Southern Resident Killer Whales. Having found that the coordinated operations of the Central Valley Project and State Water Project in the Delta was jeopardizing these listed species and adversely modifying their critical habitats, the BiOp includes a Reasonable and Prudent Alternative (RPA). The RPA is basically an action plan that describes how the state and federal projects can be operated in a way that still complies with the Endangered Species Act.
NMFS determined that preserving the listed species and their critical habitats would require some limitation on exports from the dying Delta. Naturally, then, the BiOp is destined to be constantly embroiled in legal disputes. Leading the charge is named plaintiff San Luis & Delta-Mendota Water Authority (SLDMWA), which includes Westlands Water District and other contractors. The mess of litigation is neatly summarized under the title Consolidated Salmonid Cases.
So what’s the beef? The RPA includes a variety of measures to help protect the listed species, but the part of the RPA that SLDMWA and Westlands find most offensive is known as Action IV.2.3. NMFS recognized that steelhead, and the winter and spring run Chinook salmon have encountered a lot of trouble from the South Delta pumps. The fish, unable to migrate to Chipps Island and out of the Delta, are instead entrained in the Delta channels, since the project pumps reverse the flow of the channels. To address this critical issue, Action IV.2.3 calls for strategically-timed reductions of exports from the Delta when salmon are present, to allow the fish safer passage. In particular, between January 1 and June 15, exports should be reduced to a level such that the reverse flows in the Old and Middle Rivers stays within the range of -2,500 to -5,000 cfs, depending on the extent to which fish are getting caught in the channels. Alternatively, Action IV.2.3 may end before June 15, if the average water temperature at Mossdale exceeds 22°C for one full week.
The Consolidated Salmonid Cases (as well as a parallel set of cases concerning the delta smelt) have been heard by Judge Oliver Wanger, of the U.S. District Court for the Eastern District of California. On February 5, 2010, SLDMWA got the first prize it wanted. Judge Wanger granted a temporary restraining order (TRO), specifically to put a stop to the export and pumping restrictions called for in Action IV.2.3 of the RPA. The TRO will last only 14 days, although it could be extended for another 14 days if SLDMWA can prove that doing so would not jeopardize the listed species or their critical habitats. Those interested in reading the order can find a copy here (PDF).
The Endangered Species Act (ESA) requires that determinations be made on the basis of best available science. In its efforts to invalidate the BiOp, SLDMWA has gone to great lengths to illustrate why it believes the BiOp is based on faulty science — suggesting, for instance, that the BiOp basically misrepresents and overstates the impact that the pumps have had on the fish. But Wanger refused to grant the TRO on that basis. “Plaintiffs have not yet established a likelihood of success on their ESA claim,” according to the order.
Instead, Wanger granted the TRO on the basis of the National Environmental Policy Act (NEPA), which requires federal agencies to study the significant environmental impacts of their actions and analyze potential alternatives. Echoing his earlier ruling on the 2008 BiOp for the delta smelt, Wanger found the salmonid BiOp deficient because it lacked NEPA analysis. It appears that Wanger wanted to see more analysis on the impacts of the RPA on the human environment, including the effects on water supply. Still, it would be inaccurate to say that the RPA actions were written in a vacuum, since the BiOp explicitly considers water supply issues.
Once NEPA was established as a basis for the TRO, Wanger compared the level of harm suffered by water contractors (if the TRO were to be denied, and pumping restricted) to the level of harm suffered by the listed species (if a TRO were to be granted, and pumping continued). The figures cited in the decision state that because of pumping restrictions, at least 190,000 acre feet of state and federal water was lost to the ocean, rather than conveyed to San Luis where it could be stored for future release. Wanger’s decision observes that this loss of water “will contribute to and exacerbate the currently catastrophic situation faced by Plaintiffs, whose farms, businesses, water service areas, and impacted cities and counties, are dependent, some exclusively, upon CVP and/or SWP water deliveries” — in other words, the impacts to the human environment that Wanger presumably wants to see analyzed in a NEPA document. On the other hand, the fish counts presented in the opinion suggest that 1,154 winter-run Chinook salmon were salvaged in January 2010 — well under the 22,897 juvenile winter-run fish that can be “taken.” Similarly low impact was expected for the other listed species discussed in the 2009 NMFS BiOp.
In other words, Wanger decided — at least over the short period of time when the TRO is in effect — that the “substantial and irreparable” harm to farmers of allowing water to flow to the ocean was deemed to be more serious than the “minimal” harm to the listed species. Particularly because winter storms promise to provide a valuable supply of water for this upcoming year, and the contractors want that water to be captured and stored at San Luis.
Wanger’s decision to grant the TRO means that despite the collapse of fish populations in the Delta, pumping will continue, at least for the short period of time that the TRO is in effect. The court will use that time to evaluate SLDMWA’s request for a preliminary injunction (of longer duration, but also temporary) against the pumping restrictions required by Action IV.2.3.
We hope to continue following future developments in the salmonid and delta smelt cases. Never a dull day for California water watchers!