Environmental, commercial fishing, and sportfishing groups filed a 60-day notice letter of intent to sue for protection of the Sacramento River winter-run chinook salmon and Delta smelt being killed by federal and state water export pumps during their out migration each year.

Graphic by Bay Institute

Winter-run salmon were listed as endangered in 1994 and the Delta smelt were listed as threatened in 1993. But, yearly exceedances of take (kill) limits at the federal and state water export projects pose an on-going and continuing threat to these species, in violation of the Endangered Species Act. The water projects have exceeded the winter-run salmon take limit in four out of the past seven years, and in the most recent season exceeded the limit by 170 percent. Similarly, taking of the Delta smelt has exceeded monthly limits seven times since 1995, including six times in the last three years alone, often by stunning margins.

Mike Sherwood, an attorney for Earthjustice who is representing the coalition said, “In their operation of the Delta export pumps, the water agencies have routinely exceeded the take limits for winter-run salmon and Delta smelt ever since these fish were listed under the Endangered Species Act and the take limits were established. These unconscionable fish kills are threatening the very existence of these species, and are illegal. It is time for these agencies to comply with the law and to give the winter-run salmon and Delta smelt a chance to recover.”

The California Department of Water Resources and U.S. Bureau of Reclamation operate the Delta water export pumps under a joint operating agreement. Under the ESA, the Department and Bureau are prohibited from taking listed species except to the extent allowed by the U.S. Fish and Wildlife Service and National Marine Fisheries Service, and then only if such taking will not undermine the continued existence of the species. Plaintiffs groups believe that the winter-run Chinook and Delta smelt face just such a threat in the Delta export pumps.

“The water project pumps in the Delta are like the worlds largest vacuum cleaner sucking billions of young fish and larvae in the southern Delta to their death,” said John Beuttler with the California Sportfishing Protection Alliance. “This has resulted in staggering economic losses to the sport and commercial fishing industries. The project pumps are so powerful that they frequently reverse the natural outflow patterns of the Sacramento and San Joaquin Rivers, which results in chaos for the estuary’s ecosystem and fisheries. After nearly a decade, its time for water projects to operate in a manner far less damaging to winter-run salmon and Delta smelt.”

The water projects largely control the flow of water in the Sacramento and San Joaquin Rivers into and out of the Sacramento-San Joaquin River Delta. At times, the Projects’ water export facilities capture more than half the total water that flows into the Delta, drastically altering the flow regime of the estuary. This water is then exported to the Central Valley and Southern California via the Delta export pumps. The impact of this “replumbing” of the Delta ecosystem and its fishery resources has been devastating. Vast numbers of fish and much of their food supply are destroyed when diverted into the intake channels of the Projects’ pumping plants in the southern Delta. Unfortunately, many out-migrating winter-run chinook salmon smolts and Delta smelt perish in this process.

“If engineers are smart enough to design a system that redirects half a river, we can certainly find a way to protect the fish that live in the other half,” said Gary Bobker of The Bay Institute. “These fish deserve a chance to recover; it’s now time for state and federal water agencies to do their part.”

In the summer of 2000, following five years of work, federal and state agencies adopted the CALFED Bay-Delta Plan to restore the Bay-Delta’s ecological health while helping the state meet its water needs. A new operational scheme at the export pumps, designed to protect fishery resources, is required as a major part of the plan.

“The delta pumps are the largest fish killing machines on the planet,” said Barry Nelson, senior policy analyst with NRDC. “Protecting the smelt and salmon from these pumps, and ensuring that Endangered Species Act requirements are implemented, are major goals of the CALFED plan. Unfortunately, the agencies failed to implement the plan last year, resulting in even bigger fish kills. Our action aims to stop the fish kills and make the agencies fully implement CALFED.”

In their “60-day Notice” letter, required by the ESA before a lawsuit can be filed, the groups state that unless the Department and Bureau modify Project operations as necessary to protect these species and to comply with the incidental take limits, legal action will be initiated. The coalition includes The Bay Institute, California Sportfishing Protection Alliance, Center for Biological Diversity, Natural Resources Defense Council, Pacific Coast Federation of Fishermen’s Associations, and Save The Bay (Save San Francisco Bay Association).