delta smelt litigation update
Blogging at PLF on ESA was unfortunately light last week, especially considering the several ESA-related news items that occurred. We continue to monitor delta smelt litigation, which took a new turn when the San Luis & Delta-Mendota Water Authority and Westlands Water District filed a complaint in the Eastern District of California. This complaint challenges the December 2008 biological opinion on the effects of coordinated state and water federal projects on the smelt and is available here. The challenge to the biop contains several allegations and argues that the U.S. Fish and Wildlife Service's conclusion that water pumping jeopardizes the the smelt species is flawed:
While the project pumps do take some delta smelt, the best available scientific data show that this take, and other project effects, do not have population level effects on the delta smelt. The 2008 Biological Opinion will result in significant harm to Californians who depend upon [federal Central Valley Project] water supply, without reason to believe that these costs will result in any meaningful benefit to the delta smelt.
The State Water Contractors have also filed a complaint, available here. Today the SWC action was reassigned to Judge Wanger, who is overseeing the rest of the delta smelt litigation. Judge Wanger has set an initial scheduling conference for June 11.
In today's Marysville Appeal-Democrat, Thomas D. Elias discusses Judge Wanger's earlier decision that invalidated the Service's no-jeopardy finding and the impact it has had on California's water situation:
Wanger's decision was one reason many California reservoirs neared their lowest levels ever last summer and fall. Yes, 2007 and 2008 were dry years, but this drought did not approach record levels. Wanger's ruling made things far more severe by depriving the state Water Project and the federal Central Valley Project (CVP) of about one-third of the water their reservoirs would ordinarily have gotten.
Now a series of February and March storms has restored the snowpack in the Sierra Nevada Mountains, ultimate source for most water in the Delta, to normal or near-normal levels.
But the new Fish and Wildlife regulations will stop the pumps even longer times than did Wanger's order. The idea is to idle them during the entire smelt spawning season, essentially from January to June.
So supplies will be low for farms and cities this spring and summer. Perhaps not as low as indicated by the federal Bureau of Reclamation before the late-winter storms, when it warned many farmers to expect no water at all from the CVP. But still far lower than if the pumps were operating normally.
This time, though, there's an attempt to keep the pumps running. It takes the form of a lawsuit by the Westlands Water District and the San Luis & Delta-Mendota Water Authority, which help irrigate vast swaths of the western San Joaquin Valley. They essentially argue the new rules unreasonably value fish over people. And they're right.
Thanks to Aquafornia for the pointer.
What to read next
PLF asks the U.S. Supreme Court to rule that there is no “legislative exception” to the unconstitutional conditions doctrine
It seems that some governments and courts prefer to treat Supreme Court precedent as an option, rather than a requirement. The Supreme Court has ruled—twice—that it’s unconstitutional for government to … ›