On May 27, 2010, Judge Wanger issued his ruling on the delta smelt biological opinion, which was analogous to his earlier ruling on the salmonid biological opinion. In the Consolidated Delta Smelt Cases, Wanger determined that the federal agencies had acted arbitrarily and capriciously with respect to Component 2 of the reasonable and prudent alternative (RPA), because Component 2 “lacks factual and scientific justification.” He concluded that there were grounds to grant an injunction.
This week, in light of Wanger’s May 27 ruling, the parties to the litigation settled on alternative plan for joint operation of the state and federal projects, which would still provide some protection for delta smelt. The plan does not cure purported defects of the biological opinion. Rather, it is a short-term compromise that would be put into effect for the remainder of June.
Component 2 of the RPA, which was at issue in the case, called for the following course of action in order to protect larval and juvenile delta smelt:
- OMR flows may not be more negative than -1,250 to -5,000 cfs, as calculated on a 14-day running average. The 5-day running average value may not surpass the requisite 14-day average by more than 25%.
- The Smelt Working Group should recommend adjustments to OMR flow as appropriate, subject to approval by USFWS.
- Component 2 terminates on the earlier of these two dates: June 30, or whenever the average three-day temperature of water at Clifton Court Forebay reaches 25°C.
In contrast, the proposed order (PDF) suggests the following alternative regime, to be implemented in lieu of Component 2 of the RPA:
- Exports will be constrained to ensure that OMR flows are no more negative than -5,000 cfs.
- If cumulative take of delta smelt on a particular date exceeds the established precautionary take level, more stringent export limits may be imposed to decrease negative OMR flows to some magnitude less negative than -5,000 cfs.
- Reverse OMR flows less negative than -5,000 cfs may be imposed if there is a “rising daily trend in smelt salvage” or a daily salvage at the Jones pumping plant resulting in an “imminent threat” to the delta smelt. USFWS would discuss findings with Reclamation, DWR, and DFG before approving such an OMR adjustment.
These operational parameters would be put into effect until the earlier of these two dates is reached: June 30, 2010, or whenever the average three-day temperature of water at Clifton Court Forebay reaches 25°C. OMR flows are to be calculated as in the biological opinion.