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Delta Agreement to "Protect Listed Species" or another Ploy to Export More Water

Delta Agreement to "Protect Listed Species" or another Ploy to Export More Water

by Patrick Porgans, Planetary Solutionaries

March 3, 2011 - Last Thursday a federal judge approved a settlement agreement to protect the tiny Delta smelt, one of a number of species listed under the Endangered Species Act (ESA) that dwell in the Sacramento-San Joaquin Delta.

The smelt may be on the verge of extinction. Its 15-minute claim to fame was immortalized during a 60 Minute segment that mistakenly credited it for the demise of California's agricultural industry. Incidentally, last year, when CBS aired the program, California's agricultural industry posted record-breaking profits, as it did during the entire four-year of California's so-called "drought".

The agreement is the result of protracted legal battles concerning the decline of and protection for Delta smelt and salmon. Federal Central Valley Project (CVP) and State Water Project (SWP) pumps that export water to contractors south of the Sacramento-San Joaquin Delta are the focus of the dispute. The Court-approved settlement is being celebrated by water contractors, farmers, government officials and environmental groups as a positive development.

It also provides time for the U.S. Fish & Wildlife Service (USFWS) to improve the methodologies it uses to evaluate the impacts of the pumping on the smelt in response to a December ruling by U.S. District Judge Oliver W. Wanger, which invalidated key parts of a much-debated plan to protect the smelt.

Wanger also made a ruling back in May 2009, when he issued an injunction, agreeing with the plaintiffs that the reduction of exports to their agricultural operations would result in "irreparable" economic and environmental harm in violation of NEPA. On May 31, 2009, the government Delta pumping plants reportedly went silent as the Delta smelt "take" was just 27 fish away from exceeding the "take" limit, which would have meant that both the Department of Water Resources (DWR), operator of the SWP, and the Bureau of Reclamation, operator of the CVP, would have been in "violation" of the ESA.

It is interesting to note, that the fish count "take" and salvage numbers are not made by either USFWS or California Department of Fish and Game biologist. The counts are performed by DWR and Bureau maintenance personnel. Even when the "take" is exceeded, it just reinitiates consultation among the parties, and usually what happens is they agree to increase the number of fish they can "take" kill.

Essentially, the agreement allows for increased Delta pumping and water exports by government projects, during March, April, May and June, a critical period when the juvenile Delta Smelt are highly vulnerable. A review of the government's database indicates that as much as 94 percent of the mortality of this species occurs in May and June.

Reliable sources contend that the "settlement agreement" was crafted by attorneys, representing plaintiffs and defendants, all of whom are to one degree or another, responsible for the demise of the Bay-Delta Estuary, Delta Smelt, salmon and other species.

The listing of the Delta smelt as an endangered species, is at least partially attributable to the tens-of-thousand killed at the federal CVP and SWP Delta export pumps. Those projects export millions of acre-feet of water annually to their respective agricultural and urban water uses south of the Delta.

Critics charge that the deplorable condition of the Delta smelt and other listed species is indicative of the government's failure to effectively provide the levels of protection required under the provisions of the ESA. There are approximately 52 different species of fish entrained (sucked in by the [pump-related current) into the CVP Tracy Fish Collection Facility (TFCF) per year; however, the total numbers are significantly different for the various species salvaged.

Government records confirm the numbers of Delta smelt salvaged/killed; however, unlike some species, it is commonly acknowledged that delta smelt often do not survive the salvage process; the government does not count the actual number of smelt that are killed by the pumps. The data also proves that in the course of 20 years more than 11.3 million salmonid have been killed at the pumps, and an incalculable number loss to pump-related predation (two of the salmonid species are ESA listed).

Government sources contend that the protracted litigation impedes meaningful progress to sustain the populations facing possible extinction. Critics argue that the settlement, as written, is a cryptically convoluted conundrum orchestrated by self-ingratiating predatory attorneys representing plaintiffs and defendants, which, have become awash in a sea of endless blame.

Main-stream media accounts of the terms of the agreement lead one to believe that it's an interim win-win situation for the plaintiffs, intervenors, and the defendants. Water agencies, contractors, farmers, and environmentalists all appear to agree it is a positive development and the best course of action.

CVP and SWP contractors, such as the Westland's Water District and the Metropolitan Water District of Southern California, are very pleased with the settlement because it will increase the amount of water they receive. This increase pumping comes at a time when the SWP's major storage facility, Oroville Reservoir is already at 76 percent of capacity, two of its terminal reservoirs in southern California are near capacity, and the joint SWP/CVP San Luis Reservoir, located south of the Delta is at 96 percent of capacity.

Robert Baiocchi, president of California Fisheries and Water Unlimited, and former executive officer of California Sportfishing Protection Alliance, said, "The settlement agreement is an ingenious scheme conjured up by the federal and state water project personnel, and their contractors, to suck more water out of the Delta and to bifurcate the meaning and intent of the ESA. Delta Smelt have and will continue to be harmed by government water exports, although the degree of harm remains debatable, the limited number of smelt that are there to be "counted" is indicative of the fact that the species has crashed."

Reliable sources are saying the agreement sounds too good to be true. As written, the agreement and the stipulations, are difficult to decipher, and loaded with ambiguous-opened non definitive legalize.

It's unclear what practical effect that the agreement will have because the pumping curbs are triggered by unpredictable delta conditions; no curbs have been imposed so far this year. Restrictions designed to protect migrating salmon remain unchanged, although they, too, are the subject of litigation.

What is clear, in paragraph 4 of the settlement, is that if the USFWS makes a determination to change the flow requirements, restrict pumping, it has to go through a series of hoops, reviews, and water projects operators' and contractors' approval. It also states any party may provide information on economic impacts and other information that it deems relevant, and that if any of the plaintiffs or plaintiffs-intervenors seek judicial review of and relief from such changes, the terms and conditions of this stipulation shall immediately and henceforth become inoperative.

Contact was made with the California Attorney General's Office, with the attorney listed on the settlement agreement, in an attempt to find out what inoperative means, as well as other cryptic language contained therein. The contact attorney, Deputy Attorney General Cecilia L. Dennis, said the language in the settlement speaks for itself, and that her office does not respond to questions from the public. She advised the author that her client, DWR, a plaintiff-intervenor in the litigation, requested that all questions regarding the settlement be referred to its Public Information Office. A request to DWR has been made, and a reply should be forthcoming.

Government sources share some of the concerns raised by Baiocchi, regarding potential risks that any additional judicial review or relief challenge(s), should they arise, may have on ensuring the protection of the Delta smelt. Although supporters of the agreement contend that the weekly review and other related time-sensitive requirements will help to make the process more "transparent, they share concerns about the USFWS personnel ability to make a prudent decision and/or action to protect the species, as required by the agreement, while having to deal with the dynamic changes and conditions of the Delta.

Trent Orr, an attorney with the environmental group Earthjustice, was quoted as saying it is "…a short-term agreement that's good for the health of the delta estuary and good for growers. ... ." Orr's comments are consistent with the other signatories to the settlement about providing more time.

Critics point out that those same entities have been assuring the public for the past 15 years that they would come up with a "sustainable solution" to protect the Delta and double the numbers of Delta-dependent species and have failed miserably in the process.

A report recently released by the Public Policy Institute of California, states, "Over the past 150 years, California's native fishes—a broad indicator of aquatic ecosystem health—have lost almost every conflict with economic development. Among the state's 129 native fish species, 7 have become extinct, 31 are listed as threatened or endangered under the federal and state Endangered Species Acts (ESAs), and another 69 are in decline and will likely qualify for listing in the future. Only 22 native fish species are reasonably secure."