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Two More Suits Filed in Legal War Over Bay-Delta Smelt

SAN FRANCISCO, California, November 13, 2009 (ENS) – The Center for Biological Diversity today filed two lawsuits against the U.S. Fish and Wildlife Service for failing to protect two critically imperiled San Francisco Bay-Delta fish species, the longfin smelt and delta smelt.

One lawsuit claims that in responding to a 2007 petition from the Center under the Endangered Species Act, the Service in April 2009 improperly denied federal listing for the longfin smelt.

In April, the Service announced that the Bay-Delta population of longfin smelt does not meet the legal criteria for protection as a species subpopulation under the Endangered Species Act because it is not a distinct population segment. Because some Bay-Delta longfin smelt migrate into the Pacific Ocean and travel up the coast to breed with longfin further north, they fail to meet the criteria for protection as a distinct population segment, the Service explained.

The second lawsuit complains that the Service has failed to respond to a 2006 petition from the Center to change the delta smelt’s federal status from threatened to endangered.

“Formerly abundant fish at the base of the food chain in the San Francisco estuary are being driven to near extinction, and our once-healthy salmon runs have been crippled by record water diversions,” said Jeff Miller, conservation advocate with the Center for Biological Diversity.

“Endangered Species Act protection will benefit not just longfin smelt and delta smelt, but also Central Valley salmon, sturgeon, and steelhead populations that are economically important to coastal and Central Valley communities,” he said.


A Delta smelt (Photo courtesy USFWS)

The fate of these smelt species turns on the amount of water available for their survival. California has had three dry years in a row and the same water is in demand by farmers for irrigation and by city dwellers for drinking water.

In the spring of 2006, an Alameda County Superior Court judge ordered the state to stop pumping water from the Delta within 60 days, finding that the Department of Water Resources lacked the proper permits or authority to run the massive Harvey O. Banks pumping station.

The Natural Resources Defense Council and five other environmental groups sued the U.S. Fish and Wildlife Service after the agency ruled that increases in state and federal pumping from the Delta would not harm the smelt.

Federal District Judge Oliver Wanger in Fresno, ruled the day after the pumps were shut down that the management plan for the Delta was not good enough scientifically. He ordered federal and state water authorities to rewrite their management plans to protect the fish.

In December 2008, the Service delivered a formal Biological Opinion which determined that the continued operation of the Federal Central Valley Project and the California State Water Projectis likely to jeopardize the continued existence of the delta smelt and adversely modify its critical habitat. The Biological Opinion is in fact a plan that provides for increased protection for the tiny fish.

In March, the Service began a five year status review for the delta smelt. And also in March Westlands Water District and the San Luis Delta-Mendota Water Authority filed suit against the Biological Opinion, alleging failure to comply with the National Environmental Policy Act, and requested a preliminary injunction.

On May 29, Judge Wanger granted the preliminary injunction requested by the water districts. In accordance with this ruling, the state and federal pumps increased water exports to San Joaquin Valley growers.

Then, in October Judge Wanger sided with the water districts and farmers again, ruling that the Fish and Wildlife Service failed to conduct a an environmental analysis required under the National Environmental Policy Act before issuing its Biological Opinion.

The analysis should have taken into account the environmental effect on humans of restricted water pumping to save the imperiled fish.

Judge Wanger did not order the smelt plan changed or the water cutbacks to agriculture and Southern California water users reversed, but he could do so during another hearing in December. Then, he could order the Service to rewrite the smelt plan, and he could suspend the plan while it is being rewritten.

The legal tangle comes at a time when Delta smelt, a keystone species for the health of the Sacramento-San Joaquin River Delta, has declined to its lowest ever population level, according to the California Department of Fish and Game.

The collapse of Delta smelt is accompanied by the decline of longfin smelt, threadfin shad, juvenile striped bass, green sturgeon and Central Valley Chinook salmon. These fishes have been stressed by increases in water exports, toxic chemicals and invasive species.

In addition to filing the two lawsuits, the Center for Biological Diversity is urging California voters to reject the water bond legislation signed this week by Governor Arnold Schwarzenegger, saying conservation and fishing groups consider the infrastructure the bond would fund to be “a death warrant for the Delta ecosystem.”

“The Delta ecosystem needs less water exported to save collapsing fish populations, but instead the governor has approved a policy package and budget-busting infrastructure that could increase water exports to subsidized corporate agribusiness and Southern California,” said Miller.

The package of water measures enacted into law this week is comprised of four policy bills and an $11.14 billion bond. The package establishes a Delta Stewardship Council, sets water conservation policy, ensures better groundwater monitoring, and provides funds for the State Water Resources Control Board for increased enforcement of illegal water diversions.

The bond will fund, with local cost-sharing, drought relief, water supply reliability, Delta sustainability, statewide water system operational improvements, conservation and watershed protection, groundwater protection, and water recycling and water conservation programs.

But Miller says the $11.1 billion water bond bill could lead to the construction of a peripheral canal and more dams. The bond will go before voters in November 2010.

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