Court Decision a Huge Victory for Salmon and Delta Smelt!

California Sportfishing Protection Alliance Advisory / 3-28-07

Court Decision a Victory For CESA Listed Fish

The Alameda County Superior Court ruled last Thursday (March 22nd) in favor of CSPA’s arguments that the Department of Water Resources (DWR) must have a permit under the California Endangered Species Act (CESA) if they are to continue pumping water out of the Delta.

The court reached this decision because species listed under the Act (primarily Winter-run & Spring-run salmon and Delta Smelt) are being killed by State Water Project Delta operations. CESA requires an incidental take permit if an activity is going to kill a listed species. The Court gave them 15 days to respond to the Court’s decision and 60 days following that to obtain a permit from the California Department of Fish & Game. The response from DWR and DFG to the news media was that the timeline established by the Court could not be met.

CSPA finds this response stunningly arrogant and misleading. If we go back to the state’s legislative hearing of August 2005, the Senate Natural Resources Committee made it clear DWR should obtain a real permit instead of the “patchwork” of alleged agency agreements that DWR claims would satisfy state law. The agency argued that they have put more water into the system and tried to make things better for the fish. But, the reality is that the amount of water exported out of the system has reached some of the highest levels in history while significant declines of critical foodweb species and certain pelagic fish (including striped bass, Delta smelt and threadfin shad) have collapsed to the lowest levels in history. Obviously, killing listed salmon has not help to recover these species, either!

In March 2006 we filed a “sixty day notice of intent to sue” to inform DWR that it needed to have a “take permit” that would include mitigation requirements for the listed fish they would kill by exporting water out of the Delta. When they failed to do that, we commenced legal proceeding in October. For years species that should have been protected by CESA experienced significant losses without the benefit of programs dedicated to offset the numbers of fish killed. It was high time for state agencies to assume the responsible leadership role the public expects and comply with the law.

From our perspective, DWR had almost a year to work with the Department of Fish and Game (DFG) to get the take permit that would include reasonable mitigation. Now the agency says there's not enough time during the next 72 days to get a permit! It seems that this would all depend on how the agency decides to use their time! It’s not our fault if they chose to believe the spin they put on their own inaction and culpability. Perhaps this is another smoke screen to persuade the court to modify the draft ruling?

By alleging that 60 days is not enough time to obtain the permit, DWR has raised the specter of having to shut down the pumps, thus fueling the rhetoric about the catastrophic impacts this would have to the people who need the water and to the state’s economy! When DWR returns to court in 12 days, we expect it will request to stay the ruling or to significantly extend compliance timelines. We wouldn’t be surprised to see a request for a four or five year delay in obtaining a permit while the DFG prepares the Bay-Delta Conservation Plan. The plan would likely include DWR’s CESA commitments while ensuring “no surprises” in exports cuts to DWR’s contractors.

At issue here is the DWR - DFG position that they want a program that provides for sustainable fishery resources and that they way to do this is to use Bay-Delta Conservation Plan. Unfortunately, this only confuses the real issue of our government not complying with the law. The CESA is not a tool that by itself restores species sustainability. It is very limited in its scope and it endeavors to stop species from going extinct so there are sufficient numbers to rebuild populations to sustainable levels. CESA is aimed at stopping the take to the maximum possible extent and preventing extinction by requiring mitigation for take that can’t be avoided.

The Bay-Delta Conservation Plan will take years to finish. When completed, it should work in conjunction with CESA to ensure the decimated fisheries of the estuary are restored to sustainable levels. Let’s hope the court stands firm in the wake of such bogus agency arguments!

John Beuttler
CSPA Conservation Director
1360 Neilson Street
Berkeley, CA 94702
510-526-4049