Fish Group Sues Department of Water Resources For Taking Endangered Salmon

Fish Group Sues DWR For Taking Threatened And Endangered Salmon

By Dan Bacher

An alliance of sportfishing groups recently filed a lawsuit against the State Department of Water Resources (DWR) to compel them to comply with a state law requiring them to protect endangered Delta fish species, opening a new front in the battle to save the California Delta.

The lawsuit charges DWR for violating the California Endangered Species Act (CESA) by capturing and killing threatened spring-run chinook salmon, endangered winter-run chinook salmon and threatened Delta smelt at its South Delta pumping facilities without securing the required permit from the California Department of Fish and Game.

Watershed Enforcers, a project of the California Sportfishing Protection Alliance (CSPA), filed the lawsuit as part of an aggressive offensive by a broad coalition of fishing groups, environmental organizations and the Winnemem Wintu Tribe to save the Delta ecosystem from imminent collapse. At an initial hearing on the lawsuit held on October 6 in Alameda Superior Court, the Judge set a November 17 hearing date for the lawsuit.

The action asks the court to order the defendant either “immediately cease” operation of its South Delta pumping plant in a manner that kills fish, procure authorization from the DFG pursuant to CESA or show cause why such cessation or authorization is not mandated by CESA, according to Bill Jennings, Executive Director of the California Sportfishing Protection Alliance (CSPA).

“One only has to look at DWR's refusal to comply with the most basic requirements of California law protecting endangered species to understand why the Delta's ecosystem is experiencing catastrophic collapse,” said Jennings.

“At a time when state and federal agencies are spending millions of dollars on emergency studies to identify the cause of the crash of Delta fisheries, DFG and DWR have conspired, with a wink and a nod, to exempt the State Water Project pumps - the largest killer of endangered species in the estuary - from having to comply with the fundamental requirements of CESA,” he emphasized.

The lawsuit occurs at a time when the California Delta, the most significant estuary on the West Coast, is encountering its greatest environmental crisis in history. Four pelagic species - Delta smelt, longfin smelt, juvenile striped bass, and threadfin shad - have collapsed to record low levels over the past four years. Last fall's tow net survey by the DFG produced the lowest numbers of Delta smelt ever, while this summer's survey yielded the lowest ever juvenile striper index.

In addition, the zoo and phyto plankton species that formerly sustained these species have also declined to record low levels.

Meanwhile, the state and federal governments have spent millions of dollars over the past decade to bring back spring and winter run chinook salmon. Although both species are on the rebound, their recovery is dramatically threatened by the food chain crash.

The POD (Pelagic Organism Decline) team of state and federal scientists now studying the Delta has pinpointed three causes for the decline - water exports, toxic chemicals and exotic species.

At press time, Jerry Johns, Deputy Director of the Department of Water Resources, said he couldn't comment on the specifics of the lawsuit since the Department lawyers were reviewing the documents and he hadn't read it yet himself.

He acknowledged that the state hadn't acquired the permits, but said the water agency and DFG had signed a “complicated and detailed patchwork” of agreements beginning in 1986 that protect Delta fish.

When Fish and Game Code was amended to include Section 2081.1 of CESA, passed by the State Legislature in 1997, he said that a document including the previous agreements, such as the four pumps agreement between DWR and DFG, was grandfathered into the law.

Johns noted that the federal NOAA fisheries biologists have been consulting with DWR since 1995 and complying with their biological opinions under the Endangered Species Act.

“While we didn't get a take permit, we think that we satisfied the intent and letter of CESA,” said Johns. “It's not like we are doing this without consulting with state and federal biologists in an aggressive manner.”

However, Jennings said that the state's violation of CESA is very “cut and dried,” since no permits were ever obtained for threatened species, as specified by the law. Jennings believes that the state didn't get the permit because the California ESA is stronger than the federal ESA, requiring mitigation of the damage done by the killing of endangered or threatened species. The law reads “the impacts of the authorized shall be minimized and fully mitigated.”

Whereas the federal government take permit issued by NOAA Fisheries allows the state an “allowable take” of endangered species until water export operations are suspended at key times of year for fish migration, it requires no specific mitigation measures or money set aside for mitigation.

Under CESA, the killing or harming (“taking”) of listed species may occur only if DFG finds that the “taking” is consistent with an incidental take statement issued pursuant to the federal Endangered Species Act (ESA) or an incident “take” permit issued by the Director.

“How long does it take for the DFG to come up with a permit and measures to mitigate the endangered fish lost in the pumps?” he asked.

Unlike the federal ESA, the state's CESA requires that any “take” authorization must ensure that impacts are minimized and fully mitigated; required mitigation measures are capable of successful implementation; and adequate funding exists to implement mitigation measures. No permit may be issued if the action will jeopardize the continued existence of a species, according to Jennings.

The lawsuit occurs at a time when the state and federal governments are pushing through a plan, the South Delta Improvement Program, to redesign the hydrology of the Delta to allow the state and federal water pumps to export more water to southern California and the Westlands Irrigation District. At the same time, the Bureau of Reclamation is pursuing another project, the Intertie project that would connect the state and federal export facilities, also for the purpose of sending more water down south.

“Our intent is to put this case on the fast track,“ said Michael Lozeau, counsel for Watershed Enforcers. “All three of these species face the risk of extinction and the Delta smelt, in particular, is hanging on by a thread. DWR, as well as the DFG, must immediately begin to implement the state's endangered species law to protect these fish.”

Bill Jennings emphasized that this lawsuit is only the first of several “offensive actions” planned to save the Bay-Delta fishery from being destroyed by increasing state and federal water exports. He pointed to the recent settlement between fishermen, water contractors and the state and federal government that will restore water and salmon to a dry 60 mile stretch of the San Joaquin River as evidence that anglers and environmentalists can win the battle for the Delta if they persist, like they did for 18 years on the San Joaquin.

“It is going to take a band of environmentalists, fishermen and Indian Tribes to move the resource agencies into formal proceedings, bound by rules of procedure and evidence, in lieu of inaction by the old boy network that has brought the Delta to its knees,” said Jennings.

You can support CSPA'S conservation efforts by becoming a member. Donations are tax-deductible and greatly appreciated. Send checks to CSPA at 1360 Neilson Street, Berkeley, CA 94702-1116. Membership starts a $25. For more information, call 510-526-4049.