Biological Opinions, Ecosystem, Endangered Species Act (ESA), National Environmental Policy Act (NEPA)

Wanger Recap: Final judgment for delta smelt, salmon dispute cools off

Tracy Pumping Plant

Tracy Pumping Plant. Courtesy of USFWS Pacific Southwest Region.

The spring season is often associated with uplifting imagery: Of nature reawakening and basking in ever-stronger sunlight, and of a new life cycle that emerges as the Earth sheds the frigid harshness of winter.  But at least in the world of California water, spring can be decidedly less romantic for various reasons — not the least of which are the Endangered Species Act skirmishes that take place in Judge Wanger’s courtroom in Fresno.  As springtime restrictions on water exports and south-of-Delta pumping are scheduled to go into effect to help protect delta smelt and salmonids, water users, environmentalists, and government officials continue a seemingly endless war over the federal biological opinions, quibbling over whether this measure or that measure should be put on hold.

‘Tis the season, and there have been developments in both the delta smelt and salmonid cases being heard by Judge Wanger.  Even though last week’s events are not as inherently theatrical as last year’s temporary restraining order battle, an update is in order.

Delta Smelt

Judge Wanger has now issued final judgment on the 2008 biological opinion (BiOp) for delta smelt.  The 2008 BiOp determined that coordinated operation of the state and federal projects could jeopardize delta smelt, and it included a Reasonable and Prudent Alternative (RPA) describing those action measures that should be taken to protect delta smelt while pumping water south.  The 2008 BiOp is itself a second version, prepared by the U.S. Fish and Wildlife Service (USFWS) to comply with a 2007 ruling by Wanger that found the first version to be flawed.

Yet Wanger still found the 2008 BiOp to be inadequate in certain respects that he described in detail in a 225-page ruling issued in December 2010.  His final judgment (PDF), issued in March 2011, is a short document describing what the federal agencies should do to cure the defects he identified in December.  It summarizes his prior ruling that the Bureau of Reclamation, not USFWS, violated the National Environmental Policy Act (NEPA) by not considering the BiOp’s impacts on the human environment.  The judgment also reiterates that the RPA should be revised to reflect the best available science (which could potentially result in a new set of action measures or simply a better justification of the current measures).

Wanger’s order provides deadlines for the federal agencies to follow.  By October 11, 2011, USFWS should have completed a new BiOp and RPA, except for certain written findings that are due on November 30, 2011.*  Reclamation is then required to complete NEPA review for the RPA by December 15, 2011, a little over two months after USFWS will release the new BiOp.  UPDATE (May 2011): Wanger agreed to extend the deadline to May 2013.

During this interim period until the BiOp is revised, a settlement agreement will be in effect through June 30, 2011 (PDF).  The settlement maintains pumping restrictions as necessary but also allows USFWS to experiment with reverse Old and Middle River (OMR) flows as high as -6,100 cfs calculated on a 14-day average, which is more aggressive than the -5,000 cfs upper bound called for in the RPA.  Under current hydrologic conditions, however, OMR flows at the end of March actually turned positive even when calculated on a 14-day average (PDF), and smelt salvage was low as of April 4 (PDF).

In a footnote, Wanger mentioned that the federal agencies and environmentalists plan to appeal his decision finding the BiOp inadequate.  It’s too soon to tell whether an appeal would overturn a significant aspect of Wanger’s analysis, merely tinker at the margins, or make no changes at all.

Early last week, the Ninth Circuit also decided a separate issue that had emerged from the delta smelt litigation — namely, whether it is constitutional to protect the delta smelt under the Endangered Species Act.  Remaining delta smelt will be relieved to learn that it is constitutional, but I hope to discuss that topic in another post.


Last year Wanger discussed problems with the 2009 salmonid BiOp developed by the National Marine Fisheries Service (NMFS), but he has not yet issued final judgment on the RPA.  This year, then, contractors sought an injunction to prevent Action IV.2.1 of the salmonid RPA from being implemented.  Action IV.2.1 calls for exports to be restricted as necessary to achieve certain flow-export ratios at Vernalis on the San Joaquin River.

As it turns out, hydrologic conditions have been favorable enough to avoid restrictions on exports, and Reclamation announced on March 28 that allocations for CVP agricultural contractors located south of the Delta would increase from 55 to 65 percent.  Action IV.2.1 is technically in effect as of the time of this writing (between April 1 and May 31), but it will not actually result in restricted exports unless flows on the San Joaquin fall below 21,750 cfs measured at Vernalis.  Because there has been no need to restrict exports yet this month, there is no action to enjoin.  The contractors withdrew their request for an injunction (PDF), and the salmonid dispute has cooled off for now.

But this may not be the end of the story.  As John Leahigh of DWR has explained, it may be too soon yet to forecast that flows will remain this high through May 31 (PDF).  Should Delta exports be restricted later this spring because of Vernalis flows dropping too low, the contractors may still revive their request for an injunction.

Thanks to Doug Obegi at NRDC and Brandon Middleton at PLF for making various court documents available for public consumption.

(*) The Endangered Species Act generally prohibits economic considerations from tainting species protection, but an RPA should be economically and technologically feasible (50 C.F.R. § 402.02).  Wanger has previously shown irritation that there was no evidence in the smelt RPA that USFWS felt any need to “fully and honestly address water supply needs beyond the species,” alluding to human need for water.  Wanger requested written findings on this issue on top of the revised BiOp.

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