In the last post, we focused on the 2009 biological opinion that the National Marine Fisheries Service prepared for salmonids, but a parallel process has been playing out with the delta smelt. The 2008 BiOp for the pelagic delta smelt was prepared by the U.S. Fish & Wildlife Service. Both BiOps issued jeopardy determinations and include reasonable and prudent alternatives (RPAs). The RPAs describe the action items that should be carried out to preserve species listed under the Endangered Species Act.
Fish & Wildlife has announced the need to implement one of these RPA measures, and just issued a 48-hour Notice of Implementation (PDF) to that effect. In particular, FWS plans to implement Component 1, Action 2 of the RPA after 5:00 p.m. on February 10, 2010.
The trigger for this action is that FWS has observed an uptick in the salvage of delta smelt. The negative Old & Middle River (OMR) flows may be decreased to protect the fish. Reduction measures of this sort are generally disliked by Westlands Water District because they restrict pumping and result in decreased exports from the Delta. But these measures are beneficial for the delta smelt because they diminish the risk that the fish will get entrained and caught in the pumps. On February 1, the Smelt Working Group did not feel the need (PDF) to recommend that any additional protective measures for smelt be implemented because the triggers for action had not been met. Now, just one week later, the working group has suggested that because 6 delta smelt have been salvaged, the reverse OMR flows should be reduced to no worse than -2,000 cfs (PDF). Starting February 10, FWS will insist on the -4,000 cfs minimum announced in the notice, but the agency also plans to impose more stringent restrictions if necessary to protect the smelt.
This announcement comes just three days after Judge Wanger issued a temporary restraining order enjoining a protective measure for fish similar to the one that FWS has announced it will implement on February 10. The TRO placed a 14-day hold on Action IV.2.3 (set forth in the 2009 NMFS BiOp for salmonids), which called for the reverse OMR flow to be restricted to the -2,500 to -5,000 cfs range. Although NMFS determined that this restriction would help minimize entrainment of winter-run and spring-run Chinook salmon, the Court nonetheless issued a TRO, so that storm season water could be captured and pumped to San Luis Reservoir.
However, implementing Component 1, Action 2 is an avenue to carry out a pumping restriction of the type that Wanger halted when he issued the TRO. This action would be carried out as a precaution for the delta smelt, and not explicitly for salmonids. Notably, protection of the delta smelt is beyond the scope of Wanger’s February 5 TRO. Perhaps Fish & Wildlife’s decision to act now is premised on a genuinely significant concern that reverse OMR flows (now more powerful since the TRO was issued) have led to increased delta smelt entrainment; or perhaps the goal was to frustrate the TRO, or perhaps some of both. Further detail on the scientific reasoning should be provided in the February 8, 2010 notes from the Smelt Working Group, but those have not yet been uploaded as of the time of this writing.
Whether the reasoning is fundamentally scientific or strategic, it seems we can at least say that the plan of Westlands and SLDMWA — to eke out 14, or perhaps 28, days of unrestrained pumping to maximize storage of storm flows — has backfired. Although Judge Wanger put one pumping restriction on hold, another will be implemented in its stead. The goal of the restriction is to reduce the negative OMR flows and ease the way for the struggling delta smelt; but it couldn’t hurt the Chinook salmon either. And now, let the next round of “fish vs. people” begin…