The suit filed against the National Marine Fisheries Service (NMFS, also called NOAA Fisheries), and the US Department of the Interior, challenges an October 2004 biological opinion concluding that the federal Bureau of Reclamation (Bureau) and the state Department of Water Resources (DWR) could strip away salmon habitat protections and increase water exports without jeopardizing endangered Sacramento River winter run chinook salmon, threatened Central Valley spring run chinook salmon, threatened Central Valley and Central California Coast steelhead, and threatened Southern Oregon/Northern California Coast coho salmon. The lawsuit also challenges the Bureau's long term operating plan (called "OCAP") for the federal Central Valley Project and State Water Project due to the Bureau's failure to prepare an environmental impact statement (EIS) on the plan.
Controversy over the NMFS opinion began well before its release and continues today. An early draft leaked to the press found that the Bureau's increased water exports would jeopardize multiple fish species, but this conclusion was reversed in the final version. This flip-flop sparked a congressional investigation, and in July, the Dept. of Commerce's Office of Inspector General issued a report finding that NMFS officials violated procedural rules in reaching this conclusion and raising questions about the integrity of the opinion. The Inspector General's report found that one of the regional officials cut out of the review process said she would not have signed off on the final document "because of her belief that there is a basic disconnect between the scientific analysis and the conclusion."
"Exporting more water south is going to cause huge problems for the salmon we have fought so hard to protect," said Mike Sherwood lead attorney from Earthjustice, which is representing the organizations in the lawsuit. Added Hal Candee, Senior Attorney and co-counsel from NRDC, "The biological opinion's conclusions contradict its own findings in an obvious attempt to conform with a preordained outcome. This is political science, not sound science."
A recent letter from California State water and wildlife officials to State Senator Mike Machado expressed concern about environmental impacts of the plan. On May 17, 2005, the Directors of DWR and the California Department of Fish and Game wrote that "the State anticipates increased impacts to winter run and spring run Chinook will occur as a result of the changes in water project operation and less stringent temperature compliance requirements."
Central Valley salmon and steelhead depend on adequate water flows in the rivers and through the Delta. They require cold water for successful migration and reproduction. Government scientists who wrote the biological opinion managed to include several key pieces of evidence in the document showing that the proposed operational changes would eliminate crucial spawning habitat and likely lead to temperature increases that would be deadly to the fish.
The suit also comes against a backdrop of new state monitoring data showing an unprecedented decline in a wide array of Delta fish species, including threatened delta smelt and striped bass. Scientists note that record high water exports have occurred in three of the last five years. A recent letter from Rep. George Miller (Martinez) to Rep. Richard Pombo (Tracy) raises questions about the health of the Delta due to water exports. Read the letter from Rep. Miller (pdf file).
"The Delta is already in crisis, the data are in," said Tina Swanson, Ph.D., Senior Scientist at the Bay Institute. "This biological opinion allows new degradation of upstream habitats, including reversing protections we know have helped salmon populations during the past ten years. This is not the time to be adding to the already enormous stresses on the ecosystem and the species that depend on it."
"Our brothers, the salmon, are already listed as endangered and threatened due to the dams and their operating procedures," noted Gary Mulcahy of the Winnemem Wintu Tribe, whose history and survival has been inextricably tied to the salmon of the Central Valley. "This is not just a question of just water, and fish. It is the basic question of life itself. We ask, how much more 'no jeopardy' can the salmon withstand?"
"When political appointees manipulate the findings of government staff scientists, we are all in trouble," said Zeke Grader of Pacific Coast Federation of Fishermen's Associations. "The facts about the health of the Delta and the fate of our fish are being papered over because certain special interests have the ear of the Bush administration."