Restoring The Smelt And The Bay-Delta Ecosystem

Court orders revisions to federal plan to protect the smelt

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This week, following a challenge from California water districts, the state and corporate agribusiness, a federal judge ordered the U.S. Fish and Wildlife Service (USFWS) to revise its plan to protect the delta smelt, a fish that makes its home in the brackish waters of the San Francisco Bay Delta. Earthjustice attorneys defended a biological opinion from USFWS that implemented protections for the smelt, and while the judge agreed with the majority of the biological opinion, he asked for revisions to specific sections.

The smelt, which is listed as threatened under the Endangered Species Act, has been at the center of an ongoing debate about the health of the Bay-Delta ecosystem. Over the past decade, as state and federal water projects pumped huge volumes of water from the delta, the fish’s numbers have significantly decreased. The smelt now rests at the brink of extinction and its drastic decline is cause for concern. Considered a key ecosystem indicator species, the fate of the smelt is closely tied to that of salmon. We talked with Earthjustice attorney George Torgun to get the latest on the fate of the smelt and the Bay-Delta ecosystem.

What is the latest news in the delta smelt case?

The 2008 biological opinion was challenged by a variety of water users and the California Department of Water resources. Yesterday, the judge, overall, upheld the jeopardy finding of the biological opinion. He has not reversed course and there is no finding that the water projects do not jeopardize the delta smelt. The judge said that USFWS’s conclusion that the water pumping operations adversely impact the smelt’s survival and recovery was valid. The judge did find issue with the particular limits being set about how much water can be pumped out of the delta. He also found issues with the amount of water that can be pumped during the fall months of wet years. He said some of the other stressors that harm the smelt were not defined in the opinion, such as pollution, farm runoff, sewage treatment plants, and invasive species. He has remanded the biological opinion to USFWS to fix the deficiencies he identified in his ruling.

How long will it take USFWS to revise the biological opinion?

It might be less than a year. This is not a wholesale re-do of the opinion, so it’s possible USFWS could do it in a few months’ time. They need to address the judge’s concerns and show him the science they relied on in a clearer and more convincing way.

What protections are in place for the smelt while the biological opinion is revised?

We’ve gone through several rounds of the previous biological opinions being invalidated and even though the judge found different parts of the new biological opinion to be inadequately explained, he has not thrown the whole biological opinion out. The biological opinion will stay in place until the revised opinion is issued, unless the parties come to him and request interim measures. We want the current restrictions to stay in place, but I suspect the plaintiffs [the water diverters] will want to see some of the restrictions lifted. So, we might be back in court soon. We have a conference with all of the parties in January, so we’ll know more then.

Will this next revision to the biological opinion be the final case concerning the smelt?

It’s possible that the water users will still think the biological opinion is not sufficient and challenge it for another round. If the judge gives a strong indication that USFWS has addressed his concerns, that certainly would make the water users think twice about spending a huge amount of time and money on another challenge. It seems like now we’re really narrowing down what the issues are. We’re fighting now over real specific limits and other details.

What does this biological opinion mean for the survival of the smelt?

This biological opinion is just about the impacts of these massive water projects on the delta smelt. It’s designed to prevent further harm to the species and to keep it from moving further toward extinction. There are other issues and challenges that the smelt are facing and those will need to be addressed through another mechanism. For example, the Bay Delta Conservation Plan is trying to create a habitat conservation plan for the smelt, and while it’s a ways off, that could eventually be a reality.

David Lawlor was a writer in the Development department. His environmental activism stems from an affinity for nature and the deep ecology philosophy espoused by the Norwegian philosopher, Arne Naess.