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Judge Upholds Pumping Limits to Protect Delta Smelt
by Dan Bacher
Wednesday Feb 10th, 2010 4:22 PM
Judge Oliver Wanger on Wednesday denied the request by Westlands Water District and other water agencies for a temporary restraining order (TRO) on Delta pumping restrictions necessary to protect Delta smelt.

Photo of Delta smelt courtesy of Department of Water Resources.

Judge Upholds Pumping Limits to Protect Delta Smelt

Wanger Denies TRO Request by Westlands

by Dan Bacher

Federal Judge Oliver Wanger on Wednesday denied the request by Westlands Water District and other water agencies for a temporary restraining order (TRO) on Delta pumping restrictions necessary to protect Delta smelt.

Attorneys from Earthjustice and NRDC successfully argued that a temporary restraining order (TRO) of Old and Middle River (OMR) flow restrictions would imperil the endangered Delta smelt, found only in the Sacramento-San Joaquin River Delta. OMR flows are a measure of whether the San Joaquin River is flowing towards the sea or towards the Delta pumps, where thousands and thousands of Delta smelt, longfin smelt, chinook salmon, steelhead, striped bass, threadfin shad and other fish species are killed every year.

“This is a reasonable compromise that balances the demands of growers with operations in the desert-like western San Joaquin Valley that depend on water from other parts of the state, with the needs of fishing communities all up and down the California and Oregon coasts that depend on our native salmon,” said Mike Sherwood, an attorney for Earthjustice.

Giving new definition to "ironic," the Delta smelt flow restrictions were triggered by recent high entrainment of Delta smelt in the Delta pumps that followed Wanger's suspension of OMR flow restrictions, said Jonathan Rosenfield, Ph.D. Conservation Biologist with the Bay Institute and president of the Salmon Aid Festival (http://www.salmonaid.org).

"When the salmon biological opinion was temporarily suspended, water export pumping rates went up, more smelt were entrained and thus, more restrictive export restrictions went into effect," Rosenfield explained. "So, the net-net of the water user suits is that they have produced greater flow restrictions than they would have had had they 'restrained' themselves."

San Joaquin Valley water agency representatives claimed the pumping restrictions will result in the loss of 90,000 acre feet of water. They said they go back to Wanger next week to lift the pumping restrictions.

"State and federal public water agencies are bracing to lose more than 29 billion gallons of water during the next seven days because of these additional restrictions," said Laura King Moon, assistant general manager for the State Water Contractors. "That is enough water to serve more than 700,000 people for one year."

"We will be back in court next week. This is not the way to run a water project," Tom Birmingham, general manager of the giant Westlands Water District, told the LA Times (http://www.latimes.com/news/local/la-me-smelt11-2010feb11,0,5607215.story).

Last week the Westlands Water District and other water interests filed a petition with the Federal Court in Fresno for a TRO cancelling part of the Delta salmon biological opinion and allowing the Delta pumps to increase to full capacity. Last Friday Judge Wanger approved their petition and the pumping operations went to maximum export levels, according to Dick Pool, administrator for water4fish.org.

On Monday, February 8, the Pacific Coast Federation of Fishermen's Associations (PCFFA) asked Judge Wanger to reverse the opinion to protect the West Coast fishing industry from irreparable harm by reinstating limitations on freshwater pumping from the Sacramento-San Joaquin Delta that are essential to the recovery of the Central Valley salmon runs.

“There must be adequate freshwater inflow through the Delta and to the Bay at critical times of the year, including winter and spring, to get the juvenile fish past the pumps and on a westward migration to the Bay and Delta," said Zeke Grader, PCFFA executive director.

The following day, Westlands petitioned for a similar Temporary Restraining Order to also waive the Delta smelt biological opinion.This opinion requires lower pumping rates than the salmon opinion.

Then on February 10, Wanger ruled both on the PCFFA request and the Delta smelt petition. He denied the Westlands Delta smelt petition and declared the PCFFA request "moot" since the smelt opinion requires lower pumping rates than the salmon opinion.

"We owe a great deal of thanks to the Earthjustice and NRDC attorneys who quickly filed the motions and presented excellent arguments on behalf of the fishing interests," noted Pool.

Central Valley salmon, Delta smelt and other fish populations have collapsed due to increasing water exports from the California Delta and declining water quality in recent years. As a result, the federal and state governments closed nearly all ocean fishing for Chinook salmon in California and most of Oregon in 2008 and 2009 to save the salmon. They also closed Central Valley rivers to all fishing for chinook salmon, with the exception of a two month season for late fall Chinook in 2008 and a six week season in 2009 in the Sacramento River from Red Bluff to Knights Landing.

The Central Valley stocks are the driver of West Coast fisheries, typically providing 90 percent of all Chinook salmon harvest off California and 60 percent of all Chinook salmon harvested off Oregon in both recreational and commercial fisheries.

"Southwick Associates has estimated that the closure has cost an estimated 23,000 jobs and $1.4 billion annually in income for the California economy," said Pool. "California has over 2,000 small and medium businesses that derive most or all of their income from the recreational and commercial salmon industry."

These businesses include 1,200 commercial boats, 11 manufacturers, seven wholesalers, 904 retailers, 230 guides and charter boats, 74 marinas and hundreds of boat dealers and marine parts and service centers.

Groups Sue to Block Westlands Backroom Water Deal

In related news, the North Coast Rivers Alliance, Friends of the River, Save the American River Association and the Winnemem Wintu Tribe filed suit in Fresno Superior Court Monday morning demanding full public disclosure of the impacts of Westlands Water District’s water export contract renewals with the U.S. Bureau of Reclamation.

The groups want full disclosure under the California Environmental Quality Act (CEQA) of the pollution and potential environmental harm from locking in such massive water exports from the California Delta, the largest estuary of the North Coast of the Americas, which provides migration corridors for two-thirds of the state’s salmon and nearly half of the waterfowl and shorebirds along the Pacific Flyway

"Three months after the State Senator Steinberg’s so-called 'historic' Delta protection legislation was approved, the state’s agribusiness industry is quietly securing secret state and federal sign offs to authorize water exporters to damage the Delta for decades to come," according to a joint news release from the groups. "A couple days before Christmas when Westlands Water District thought no one would notice, the giant district issued a three paragraph notice that quietly declared the renewal of six water export contracts valid and harmless to the Delta and environment."

Westlands Water District is trying to lock up over a million acre feet of water a year in exports from the Sacramento San Joaquin Delta, the groups contend. The federal agricultural contracts represent almost three times the Delta water that goes to southern California urban areas receive under state contracts.

“The Winnemem Wintu, a traditional people of California, see the folly of the government’s plans relative to the Delta and pray for people of reason to wake up and help protect the estuary from over pumping and the damage these plans will wreak upon the water and resources of this state,” emphasized Mark Franco, Headman of the Winnemem Wintu Tribe. “Water is the lifeblood of our people and we stand ready to protect it with our colleagues across California’s social justice movement. This rash plan will only serve a few people and will impact the rights of our future generations.”

“With little or no review Westlands Water District wants the federal government to sign off on these destructive water exports,” said Steve Evans, Conservation Director for Friends of the River. “They are slipping this by trying to avoid responsibility for reducing damage to the Delta.”

This week's court victory for Delta smelt occurs as corporate agribusiness, Governor Arnold Schwarzenegger and San Joaquin Valley Representatives have launched a series of administrative, legal and legislative attacks against the biological opinions protecting Delta smelt and Central Valley salmon. The same forces are advocating the construction of a peripheral canal and more dams to facilitate water exports to the west side of the San Joaquin Valley and southern California.