Judge Issues Final Order to Protect Delta Smelt

by Dan Bacher

In light of the continuing collapse of the Bay-Delta ecosystem, a federal judge's written order this Friday to protect delta smelt is very welcome good news for the California Delta and those who are battling to protect it.

Judge Oliver Wanger of the U.S. District Court in Fresno today issued his final written order to put in place a decision he initially made on August 31. Environmental groups say this ruling will protect the smelt and the Bay-Delta Estuary ecosystem from "being further degraded by fresh water diversions."

"Judge Wanger's order for more responsible operations of the Delta pumps comes in the nick of time for the delta smelt and the delta ecosystem," said Tina Swanson, senior scientist with The Bay Institute. "Results from this year's survey show that delta smelt numbers, as well as numbers for most of the other delta fishes collected by the survey, have fallen to a new record low. We have very little time left to save this species and its ecosystem."

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," according to a press release from Earthjustice, NRDC and The Bay Institute.

Congressman George Miller (D-Martinez), the former chairman of the House Natural Resources Committee and author of several key water reform laws, also praised the judge's ruling this evening.

"Today's order is a very important step in the effort to force California's water policy into compliance with the law," Miller said. "Nobody should be surprised by this order, nor should they be surprised to learn that the government must now take substantial steps to save the Delta and the Bay ecosystem."

"The Bush administration has been warned that their negligence and their head-in-the-sand mentality would lead to a crisis, and it has.

"Make no mistake: by sacrificing the Bay-Delta and discarding common sense, the water exporters have created a more uncertain and expensive future -- not just for the Bay-Delta but for the state and the people of California.

"They interfered with the science, they refused to impose common sense solutions, and they broke the law. Today's order is a direct result of that accumulated neglect and that systematic interference with the science on which policy must be based."

Again, it's great to receive some good news after a month of environmental disasters, including the San Francisco Bay oil spill, Prospect Island fish kill and the continuing crash of delta smelt, longfin smelt, juvenile striped bass, threadfin shad and other species, as documented by recent fall midwater trawl survey data. We must keep intense pressure on the state and federal governments to make sure that they abide by Judge Wanger's order!



Here's the press release from NRDC, Earthjustice and The Bay Institute:

For Immediate Release: 12/14/07

Craig Noble, NRDC 415-601-8235 (mobile) or 415-875-6100 (office)
Brian Smith, Earthjustice 415-320-9384
Christina Swanson, The Bay Institute 530-756-9021

COURT FINALIZES ORDER TO PROTECT BAY-DELTA, SMELT AND WATER SUPPLY FOR
MILLIONS OF CALIFORNIANS

Plaintiffs Hope It's Not Too Late to Restore Ailing Estuary, as
Biologists See
Record Collapse in Fishery Numbers

FRESNO, Calif. (December 14, 2007 6:00pm) - In a final written order
issued late today, a federal judge in Fresno set new rules that will
help protect the West Coast's largest estuary from being further
degraded by fresh water diversions, according to conservation and
fishing groups that sued to protect a tiny fish, the delta smelt.

The final written order by Judge Oliver W. Wanger of the U.S. District
Court in Fresno puts in place a decision he initially made on August 31.
The judge's order in Case 1:05-cv-01207-OWW-GSA is available at
http://www.earthjustice.org/library/legal_docs/delta-smelt-final-remedy-
order.pdf

The order follows a May 2007 decision that a government assessment of
the risk to threatened fish from massive pumps in the San Francisco Bay
Delta was 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.

"This order, while not perfect, will help improve the health of the San
Francisco Bay-Delta by allowing more fresh water to remain in the
system," said Trent Orr of Earthjustice. "Whether we know it or not,
every Californian depends on keeping the delta healthy, so doing
everything we can to protect this resource is just common sense."

The delta is the hub of California's water system, a vital component of
the state's drinking water system and its fishing and agricultural
economies. It is a recreational mecca and home to millions of
Californians.

"We hope this order will help stem the crash of the delta's fisheries
and its ecosystem," said Kate Poole, an attorney with the Natural
Resources Defense Council (NRDC), a plaintiff in the case. "Continuing
to destroy the selta's ecosystem is not just bad for fish; it's bad for
people."

Scientists say that the delta 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 initial lawsuit to protect the delta smelt was filed by Earthjustice
on behalf of NRDC, Friends of the River, California Trout, The Bay
Institute, and Baykeeper.

An Ecosystem on the Brink of Collapse

The fall midwater trawl conducted by the California Department of Fish
and Game counts delta fish species. The latest survey indicates that the
collapse of the ecosystem is continuing.
http://www.delta.dfg.ca.gov/data/mwt/charts.asp

"Judge Wanger's order for more responsible operations of the Delta pumps
comes in the nick of time for the delta smelt and the delta ecosystem,"
said Tina Swanson, senior scientist with The Bay Institute. "Results
from this year's survey show that delta smelt numbers, as well as
numbers for most of the other delta fishes collected by the survey, have
fallen to a new record low. We have very little time left to save this
species and its ecosystem."

The recent decline of the delta smelt and other species 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 and2006 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.

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