Biological Opinions, Central Valley Project, Ecosystem, Endangered Species Act (ESA), Fisheries, Old & Middle Rivers, San Luis, SLDMWA, State Water Project, Westlands

TRO Sought Against Delta Smelt BiOp, but Will Judge Wanger Consider the Science?

The battle for the pumps is on. Quick recap: on February 5, 2010, Judge Wanger issued a 14-day temporary restraining order against one action contained in the NMFS salmonid biological opinion, which (if Wanger had allowed it to be implemented) would have lessened the negative Old & Middle River (OMR) flows.  These are the reverse flows that have led to the entrainment of fish in Delta channels, but Wanger nonetheless issued the TRO.  At least for the purposes of this short-term injunction, he sided with SLDMWA (Westlands and other water contractors) because he found that losing out on storm flows harmed contractors more than the pumping would harm the fish.  Environmental advocates, by the way, have not allowed that TRO to sit stale.  Already, Earthjustice and NRDC have asked the court to stay the TRO, providing analysis of relevant science that Judge Wanger barely addressed, or even ignored, when he granted the TRO.

Then, on February 8, Fish and Wildlife determined that negative OMR flows had to be reduced anyway — but now it was to protect the delta smelt, in accordance with Fish and Wildlife’s own biological opinion.  FWS issued a 48-hour Notice of Implementation that would take effect by 5:00 p.m. on February 10, thereby reducing Delta pumping activity in spite of February 5 TRO.

But of course the story cannot end there.  For unless Wanger also enjoins implementation of the FWS BiOp as he did the NMFS BiOp, Westlands and other contractors will have substantially lost out on the benefit of their favorable February 5 ruling — particularly because SLDMWA has the option of extending the 14-day TRO for an additional 14 days, if it could show that the extension would not jeopardize fish or critical habitat.  And sure enough, SLDMWA has indeed filed a motion for a TRO against the FWS BiOp (PDF), specifically the part of the RPA that Fish and Wildlife plans to implement (Component 1, Action 2).  This is actually the second time the contractors have sought a TRO against this BiOp, but it was denied the first time because Component 1 had not actually been implemented.  Now that FWS has given notice that Component 1 will be implemented after 5:00 p.m. on February 10, the contractors will take another crack at it.

Westlands and other water contractors need to make a showing of irreparable harm in order to win this TRO, so they pull out all the stops with verbiage depicting a valley caught in the throes of crisis:

The past two years of pumping restrictions that are supposed to benefit delta smelt, coming on top of naturally dry hydrological conditions, have produced a crisis on the west side of the San Joaquin Valley.  Hundreds of thousands of acres have been fallowed, orchards have been destroyed, thousands of workers have lost their jobs, and communities have been decimated as income levels plummet, people leave, and the tax base disappears.  In this environment, the loss of every additional acre foot of water supply is keenly felt by the farms and communities of the region.

The water contractors also note that implementing Component 1, Action 2 of the RPA will reduce exports by diminishing the capacity of Jones Pumping Plant by about 1,450 cfs.  This will, in turn, result in a loss of 2,900-4,000 acre feet per day, or a total of 115,000-160,000 acre feet of water.  Wanger’s previous TRO against the NMFS biological opinion indicates that he already takes this flavor of argument seriously as a finding of irreparable harm — particularly over a short-term period when there is an opportunity to pump and store storm season flows, and where Wanger has also convinced himself that the harmful effects to fish are so negligible as to barely tip the balance.

When considering whether to grant the temporary restraining order against Fish & Wildlife’s delta smelt BiOp, Judge Wanger would presumably again balance the harms at stake — comparing the harm incurred by the contractors if the TRO is denied, against the harm to the fish if he grants the TRO.  But in the February 5 TRO, Wanger reduced the harm of the winter-run Chinook salmon to a simple division problem: of the maximum of 22,987 juvenile winter-run Chinook salmon that could be “taken” incidentally, merely 1,154 fish, or 5%, were salvaged in January 2010.

He then hastily dismissed the possibility that increased pumping could cause serious harm to the other listed species that NMFS evaluated in its 2009 biological opinion.  For example, Wanger’s order mentions that an estimated 58% of the steelhead population will have moved through the Delta by the end of February, and that about 37% will move through the Delta in February, while the TRO is in effect.  If the TRO is extended, it will be in force for the full month of February and into March.  On its face, that figure looks like it should give cause for concern.  After all, the TRO endorses unrestrained pumping at the exact same time as a substantial portion of the steelhead population is expected to move through the Delta.  Wanger noted that January 2010 salvage of steelhead was minimal; but he provided no further detail to indicate why the same ought to be true in February, which is, after all, the month in question.  Wanger then left the steelhead behind after giving it only a few brief sentences, moving onto the green sturgeon and implicitly casting aside this data, perhaps because it tended to negate his conclusion that the harm to fish is not serious when compared to the contractors’ water losses.

Given this approach Wanger took to scientific concerns in the salmonid BiOp, one wonders if his approach to the delta smelt BiOp will be any more balanced.  He may, for instance, choose to rely entirely on data cited by the water contractors indicating that the distribution of smelt may be mostly oriented away from the South Delta pumps, and that most fish are thus not in danger of entrainment.  However, a more balanced analysis of the delta smelt science must also consider the most recent discussion of the Smelt Working Group.  The Group has been discussing the increase in delta smelt salvage since February 3.  That salvage increase has been even more pronounced since the TRO was granted on February 5.

On February 8, the Smelt Working Group recommended a negative OMR flow limit of -2,000 cfs on a 14-day average (PDF), or a limit of -2,500 cfs on a 5-day average, in order to aggressively protect the smelt and prevent entrainment.  The Group generally agreed that a negative OMR flow of -5,000 cfs would not provide adequate protection for the smelt.  A minority of the Group felt that -4,000 cfs was a reasonable middle ground that would afford the smelt roughly double the protection of -5,000 cfs, when measured at San Joaquin River station 815.  The majority of the Group, however, supported the -2,000 cfs limit.  Fish & Wildlife’s Notice of Implementation (PDF) indicates that it will pursue the -4,000 cfs limit, but it could make that requirement more stringent (PDF) if the number of smelt salvaged approaches the incidental take limit too rapidly.

If -5,000 cfs is too strong a negative OMR flow to ensure survival of smelt, it stands to reason that imposing no pumping restriction at all would result in more powerful reverse flows that could pose a greater danger for fish.  But coming to that conclusion assumes that one has taken into consideration the Working Group’s understanding of the delta smelt science.

Needless to say, we’ll stay tuned.



4 thoughts on “TRO Sought Against Delta Smelt BiOp, but Will Judge Wanger Consider the Science?

  1. Nice blog today. A couple other thoughts from someone in the thick of these fights:

    1) Salvage numbers are the “tip of the iceberg” when you consider the harm that reverse flows cause to listed species, whether we’re talking about smelt or salmon or other species.

    2) These high reverse flows also harm salmon fishermen. Although the public debate has centered on endangered fish, protecting the Delta and its fish also benefits fall run Chinook salmon, which are the backbone of the State’s salmon fishery and are not listed under the ESA. These protections thus benefit recreational and commercial fishermen that depend on abundant salmon populations.

    3) As I wrote on my blog the other day, it seems quite possible that Westlands’ TRO for unlimited pumping may have caused the higher entrainment of delta smelt, resulting in the necessity of even more stringent protections over the next month or more; in other words, more dead fish and less water for farmers and cities.

    From some of the press coverage, you might think that the pumps were shut down entirely, or that there was a trickle of water coming out of the pumps as a result of these protections. Yet the CVP and SWP were pumping about 14,000 acre feet of water each day WITH the salmon protections in place (that’s enough water to cover 14,000 football fields with 1 foot of water). That sure seems like a lot of water.

    We’ll see where this all leads… keep up the good work.

    Posted by Doug O | 10 February 2010, 9:25 am
  2. Doug: thanks, I appreciate your taking the time to write in with your perspective. It seems like your points (1) and (2) are salient observations omitted from Judge Wanger’s balance of the equities.

    I agree that mainstream media has implanted an image of the pumps as a faucet that is mercilessly turned on and off at the whimsy of swimming fish. It’s too bad, since it obscures important issues, but as Sean Hannity and 60 Minutes have taught us, drama sells.

    Posted by Eric | 10 February 2010, 9:54 am
  3. Thanks for publishing. I appreciate your work on this.

    Posted by Tony LoPresti | 21 February 2010, 4:46 pm


  1. Pingback: Judge Wanger Denies TRO on Delta Smelt BiOp « Bay Delta Δ - 11 February 2010

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