Court Upholds Protections of California Bay Delta Fish Species on the Brink of Extinction

Three-judge panel maintains water management plan that aids delta smelt


Trent Orr, Earthjustice, (415) 217-2000, ext. 2082


Kate Poole, Natural Resources Defense Council, (415) 875-6100


Jonathan Rosenfield, The Bay Institute, (415) 457-0250

The Court of Appeals for the Ninth Circuit today ruled that a “biological opinion” issued in 2008 to protect the delta smelt will stand without alteration, safeguarding the habitat of a species on the brink of extinction. The decision preserves science-based guidelines for managing water flows through the San Francisco Bay-Delta at levels that protect the imperiled fish and help to restore the Delta ecosystem.

A three-judge panel ruled in favor of the Natural Resources Defense Council and The Bay Institute, which joined the federal government in appealing a lower court’s decision that would have invalidated several of the water pumping limits and other protections established under the biological opinion. Earthjustice, a nonprofit environmental law organization, represented the conservation groups.

The ruling reinforces landmark federal management plans for the Central Valley Project and State Water Project that protect the watershed’s imperiled fish and their critical habitat.

“The smelt biological opinion is a keystone element of the effort to restore the Bay-Delta to health. In recent decades, the population of the delta smelt, once one of the most abundant fish in the Delta, has collapsed largely because of over-pumping of water for industrial-scale agriculture in semi-desert areas. Many other species that rely on sufficient freshwater flows through the Delta have declined as well. Our efforts to improve flows through the Delta for the smelt have beneficial effects on the entire Delta ecosystem and the complex web of life it supports. Today’s decision will keep those flows in place and protect the Delta,” said Trent Orr, Earthjustice attorney.

Kate Poole, senior attorney with the Natural Resources Defense Council had the following statement: “The court reaffirmed the facts and recognized that science needs to guide our management of the Delta in order for ourfarms, cities and wildlife to thrive. Taking more water out of the Delta is not going to solve our problems. The emergency drought is a state-wide problem that affects all of us—from farmers to fisherman to the average citizen. And it’s the drought, not the Delta, that’s affecting the water supply this year. That’s why Delta fisherman and farmers support these protections—because their jobs and livelihoods depend on it.

“In order to ensure a healthy, productive fishing and farming industry in the Delta, the State needs to invest in a 21st-centurty water system that can that deliver clean, healthy water supplies for generations to come.

“While we can’t make it rain, we can take charge of our water use by investing in smart water practices that protect and preserve our water supply. That means employing common sense water-saving measures including everything from water conservation in our homes to drought-resistant regional water supply strategies like green infrastructure and groundwater banking to advanced irrigation systems on our farms. At a time when we cannot afford to let a drop go to waste, these steps will ensure a healthy water supply today and more resilient cities and farms tomorrow.

“Today’s ruling recognizes the importance of the Delta’s fishing and farming community, which deserves to have its livelihood preserved. We now look forward to working with the State to advance real long-term solutions to our water needs.”

BACKGROUND: In 2008, the U.S. Fish and Wildlife Service declared that water operations in California must be altered to protect the delta smelt from extinction. The Service issued a biological opinion about the effects that the federal and state water projects’ pumping of massive quantities of water from the Delta would have on this threatened species, a small fish that exists only in the Delta. Widely viewed by fish biologists as an indicator of the overall health of the Delta ecosystem, the delta smelt’s population has plummeted in recent years to a tiny fraction of its historic abundance. Studies clearly indicate that increasing diversions of water could lead to the smelt’s extinction and further degrade the Delta’s beleaguered ecosystem. The delta smelt biological opinion requires sufficient quantities of freshwater be allowed to flow through the Delta to promote the survival and recovery of the fish.

In response to legal challenges by large agricultural and commercial water users, a federal district court upheld the 2008 biological opinion’s conclusions that the water projects’ operations jeopardize the imperiled smelt but invalidated some of the bi-op’s specific protective pumping restrictions and other requirements as inadequately supported by the evidence. Because of the “jeopardy” ruling, the court left the protections in place while federal wildlife agencies revise the biological opinions. Earthjustice’s clients joined the federal government in appealing the adverse parts of the lower court’s rulings which were overturned today.

Read the court decision.

Additional Resources

About Earthjustice

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people's health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change. We are here because the earth needs a good lawyer.