Federal Judge Throws Out Biological Opinion for Threatened Delta Smelt


Ruling means state and federal water projects may be required to reduce pumping to protect fish from extinction


Kate Poole, NRDC, (415) 740-7716 (mobile)
Brian Smith, Earthjustice, (510) 550-6714 or (415) 320-9384 (mobile)

A federal judge ruled today that a government assessment of the risk to threatened fish from massive pumps in the San Francisco Bay Delta is illegal and must be rewritten. State and federal water project managers relied on the “biological opinion” by the U.S. Fish and Wildlife Service (FWS) to justify increased water exports to farms and cities south of the delta. Conservation groups sued the agency, arguing that its conclusion that increased pumping wouldn’t harm the delta smelt ignored a steep decline in the fish’s numbers and was not supported by science.

“The delta smelt population has crashed to the lowest levels ever recorded,” said Kate Poole, an attorney with the Natural Resources Defense Council (NRDC), a plaintiff in the case. “The smelt’s dramatic drop coincides with the highest levels of freshwater diversions from the delta ever. That’s not a coincidence. Yet the Fish and Wildlife Service concluded that increasing diversions even further would not jeopardize the smelt and other threatened and endangered fish. The agency’s opinion doesn’t pass the laugh test.”

The U.S. Bureau of Reclamation, which operates the federally-owned Central Valley Project (CVP) and the California Department of Water Resources (DWR), which runs the State Water Project (SWP) used the wildlife’s agency’s opinion as justification to increase delta exports and to renew 25- and 40-year contracts to irrigation districts and urban water agencies.

But in his ruling, Judge Oliver W. Wanger of the U.S. District Court in Fresno wrote, “The Delta smelt is undisputedly in jeopardy as to its survival and recovery. The 2005 BiOp’s ‘no jeopardy’ finding is arbitrary, capricious, and contrary to law…. The agency’s failure to reasonably estimate the Delta smelt population and to analyze most recent smelt abundance data make the take limits based on historical data unreliable and unreasonable.”

In 2005, delta smelt numbers were the lowest ever measured, just 2.4 percent of the numbers counted when the species was listed under the state and federal endangered species acts in 1993. Fish surveyors are having trouble finding any smelt at all this year, increasing concern that the fish are on the brink of extinction.

“The water project operators must decrease pumping,” said Andrea Treece, an attorney with Earthjustice, which represented in the plaintiff conservation groups in court. “That’s the commonsense solution to protecting smelt and other threatened and endangered species in the delta.”

Scientists say that smelt are an indicator of the health of the entire bay delta ecosystem, and are representative of a much larger decline in native delta fisheries, including striped bass, longfin smelt, threadfin shad, and others. The delta is the largest estuary on the West Coast. It functions as the hub of California’s water system, as a vital component in its fishing and agricultural economies, as a recreational mecca, and as home to millions of Californians.

The authors of a February 2007 report by the Public Policy Institute of California wrote, “Most Californians rely on the Delta for something, whether they know it or not.” (The report, “Envisioning Futures for the Sacramento-San Joaquin Delta,” is available online.)

The recent decline of the delta smelt coincides with huge increases in freshwater exports out of the delta by the state and federally operated water projects. Annual exports increased by 25 percent from 1994-1998 and 2001-2006, draining the delta of more than 1.2 million acre-feet of additional water. Annual exports in 2005 and 2006 were the first and third highest export levels on record. Wintertime exports have increased by 49 percent from 1994-1998 and 2001-2006, and springtime exports have increased by 30 percent. Delta smelt are particularly vulnerable during winter and spring, when pre-spawning and spawning adults move into the delta for reproduction, and larvae and juveniles move downstream to rearing habitat.

Recent research by a team of interagency scientists confirms that freshwater exports remains one of the primary causes of population decline of delta smelt and three other Delta fish species. Delta smelt abundance increased in the late 1990s when exports declined. But the species then crashed in the wake of the export increase in the 2000s. The State Water Project’s long-term water management plan, known as “OCAP” (“Operations, Criteria and Plan”), proposes to increase exports by substantially more.

The lawsuit was filed by Earthjustice on behalf of NRDC, Friends of the River, California Trout, The Bay Institute, and Baykeeper.

Read the decision online

Read our backgrounder “Delta Smelt Facts May 2007

Additional Resources

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