Conservation Groups Seek Intervention to Protect Delta Smelt

Industry and water district lawsuits seek delisting of protected species


Laura Robb, (510) 550-6725 and Trent Orr, (415) 665-2185 Earthjustice


Michael Wall, NRDC (415) 777-0220


Christina Swanson, Bay Institute (530) 756-9021


David Lewis, Save San Francisco Bay Association (510) 452-9261


John Merz, SRPT (530) 345-1865

A coalition of conservation groups have filed papers in two federal courts seeking “intervenor status” in lawsuits intended to undermine protection for the Delta smelt, a fish native to the Sacramento-San Joaquin estuary (the Delta). If allowed to intervene, the coalition will argue that the Delta smelt may go extinct without the protection afforded to this species, defined as threatened under the federal Endangered Species Act. Only a small percentage of Delta smelt today survive compared with historic levels.

“Extinction of the Delta smelt could result from just a single year of spawning failure or from only a few consecutive years of high fish kills or poor conditions,” said John Merz of the Sacramento River Preservation Trust. “Agribusiness and water users groups are seeking nothing less than the complete revocation of the protections afforded the Delta smelt. That is why we are seeking intervention.”

Plaintiffs seek revocation of ESA protections for the Delta smelt in the hope that this will allow the Central Valley Project and the State Water Project to pump water from the Delta without regard for the survival of the Delta smelt species or for the health of the Delta itself.

“The health and survival of the Delta smelt species is considered indicative of the health of the Delta itself,” said Christina Swanson, a senior scientist at the Bay Institute.

The coalition of conservation groups represents the group who brought the original lawsuits against the US Fish and Wildlife Service seeking protection for the Delta smelt. As a result of a lawsuit brought by the coalition, the Delta smelt were recognized as a threatened species protected under the federal Endangered Species Act in 1993. After delay by the service, the coalition again litigated to demand critical habitat protection for the smelt. Critical habitat for the Delta smelt was identified and made effective on January 18, 1995.

“Agribusiness is on a systematic campaign to use the courts to pick apart hard-won environmental protections for the San Francisco Bay-Delta and its fish,” said Michael Wall, an attorney at the Natural Resources Defense Council. “We will not stand by while those protections are attacked and another California species is driven to extinction.”

“The protection of the Delta smelt under the ESA has been a primary factor in slowing the decline of the species and in renewing the possibility of recovery for the species and the Delta as a whole,” said Laura Robb of Earthjustice. “Listing the Delta smelt under the ESA compelled the water diversion projects’ operators to consult with federal wildlife agencies to assess the effects of the combined projects on the survival prospects of the Delta smelt.”

The precipitous decline in Delta smelt abundance after 1981 coincides with a proportional increase in fresh water diversion by State and Federal water projects during the months when Delta smelt are spawning.

“Native fish of all sizes deserve our best protection,” said David Lewis, executive director of Save San Francisco Bay Association. “Protecting the Delta smelt is crucial test of whether we can secure the ecosystem for all of its values and uses — for species, water quality, recreation and economic activities.”

The coalition that is seeking intervention in the cases is represented by Earthjustice and Natural Resources Defense Council, and includes the Bay Institute, Sacramento River Preservation Trust, and Save San Francisco Bay Association. The plaintiffs in the US District Court Washington DC are the California Farm Bureau Federation and Ted Sheely, a farmer. The plaintiffs in the lawsuit being heard in the US District Court in Fresno are San Luis & Delta-Mendota Water Authority and Westlands Water District.

Fresno court document here.

DC court document here.

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