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Delta group files opposition to TUCP waiving environmental laws protecting the Bay-Delta Estuary

by Dan Bacher
“The TUCP is not in the public interest because it stampedes the State Water Board for water that is meant rightly to serve public trust resources of aquatic estuarine food webs and species in the Delta that further support migratory salmon and steelhead runs that benefits Northern California Indian Tribes (whose cultures are salmon-dependent), commercial and sport fishing interests, and the community of subsistence anglers residing in communities adjacent to Delta rivers and sloughs where they supplement their diets with costless forms of fish protein,” the letter states.
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SACRAMENTO, Calif. – At a time when salmon and other fish populations are moving closer and closer to extinction, Restore the Delta on Feb. 22 filed a formal opposition letter regarding the new Temporary Use Change Permit (TUCP) for SF Bay-Delta operations announced last  week in an executive order by the Newsom Administration.

The issuing of the order by the State Water Resources Control Board on Feb. 21 followed massive public outcry by anglers, Tribal groups, environmental justice advocates and conservationists and scathing editorials by both the San Francisco Chronicle and LA Times responding to the Governor’s executive order waving environmental laws protecting salmon, other fish and the Bay-Delta Estuary ecosystem.

“To ensure adequate water supplies for purposes of health, safety, the environment, or drought resilient water supplies, the Water Board shall consider modifying requirements for reservoir releases or diversion limitations in Central Valley Project or State Water Project facilities,” Newsom’s order states.   

The order suspends two laws. First, it suspends Water Code Section 13247 that requires state agencies to comply with all water-quality rules. Second it suspends Public Resources Code, Division 13, that ensures environmental quality and its regulations.

The code reads; “It is the intent of the Legislature that all agencies of the state government which regulate activities of private individuals, corporations, and public agencies which are found to affect the quality of the environment, shall regulate such activities so that major consideration is given to preventing environmental damage, while providing a decent home and satisfying living environment for every Californian.”

The State Water Board’s order conditionally approves “temporary changes to requirements included in the water right permits and license” for the State Water Project and Central Valley Project from February through March 2023.

The permit was issued in response to the TUCP jointly filed by the California Department of Water Resources and the U.S. Bureau of Reclamation on Feb. 13 — and follows the submission of a letter by Chuck Bonham, Director of the California Department of Fish and Wildlife (CDFW) on Feb. 20 claiming that the TUCP would have “no unreasonable impacts” to fish and wildlife: CDFW Letter to SWRCB identifying no unreasonable impacts to fish and wildlife from the TUCP. 

The board order allows the state to hold more water in Central Valley reservoirs — and release less water badly needed by collapsing populations of Chinook salmon and other fish species to survive. The order is the result of political pressure from the state's powerful agribusiness industry, who claimed the state was allowing too much water from storms to flow into the San Francisco Bay-Delta Estuary and then into the ocean.  

The RTD letter details opposition to the plan for four main reasons:

“The TUCP would have unreasonable significant environmental impacts.
The proposed TUCP is contrary to law because Petitioners failed to perform due diligence prior to submitting their petition.
The TUCP is not in the public interest.
The TUCP is contrary to law.” 
Why is the TUCP not in the public interest?

“The TUCP is not in the public interest because it stampedes the State Water Board for water that is meant rightly to serve public trust resources of aquatic estuarine food webs and species in the Delta that further support migratory salmon and steelhead runs that benefits Northern California Indian Tribes (whose cultures are salmon-dependent), commercial and sport fishing interests, and the community of subsistence anglers residing in communities adjacent to Delta rivers and sloughs where they supplement their diets with costless forms of fish protein,” the letter states.

The letter also notes that the comment deadline was issued for the TUCP, then ignored.

“The initial issue notice of the proposed TUCP (2/13/23) gave the public until 2/23/23 to protest and object, but reserved the right to approve the TUCP prior to that deadline,” according to the group.  “The State Water Board then approved the TUCP on 2/21/23. Restore the Delta filed opposition anyway on 2/22/23 to preserve standing to petition for reconsideration.” 

The letter concludes:"...for these reasons we urge the Water Board to reject this TUCP as representing unreasonable diversions from public trust resources in the Delta, diversions which are not in the public interest, do not reflect due diligence by Petitioners, and which would cause unreasonable (because irreversible) environmental impacts to estuarine species and food webs—especially when it is likely that snowmelt will come at a better time this year than it has the last two." 

John McManus, President of the Golden Gate Salmon Association (GSSA) also responded to the order — and the recent annoucements by the state and federal water contractors that some of their Big Ag water contractors would receive 100 percent of their water deliveries.   

“Recently the state announced 100% water deliveries to some of its big ag water contractors and today the federal government announced many of their big ag water contractors will get 100% of their water diversions, all at the expense of the tens of thousands of working Californians who make a living on salmon,” said McManus in a statement on Feb. 23.  “This follows Gavin Newsom’s announcement last week allowing increased water diversions which are killing salmon.”

McManus said water flowing out of the Delta has dropped by almost half since Newsom’s announcement last week.

“That water is needed to safely deliver this year’s baby salmon from the Central Valley to the ocean,” he argued. “Wiping out the state’s salmon and the other wildlife that share their habitat demonstrates that Gavin Newsom is a very poor steward of the environment.  It’s also blatantly unfair and unjust, especially considering the relatively good shape of our reservoirs and the deep snowpack still in the Sierra.  Newsom is showing he’s just another politician willing to sell out to the wealthy at the expense of regular working people in California.” 

The TUCP couldn’t come at a worse time for fish and the environment. Data released from the Pacific Fishery Management Council (PFMC) on February 14 documents the dire state of salmon populations in the Central Valley. Salmon advocates say this is due largely to decades of water exports to corporate growers like Beverly Hills billionaires Stewart and Lynda Resnick and the Westlands Water Water District and Southern California water agencies, along with poor management of Central Valley dams and reservoirs.

Under the 2022 regulations, the projected spawning escapement in the Sacramento River Basin was 198,694 hatchery and natural area fall-run Chinook adults. However, only 61,850 hatchery and natural area adult spawners actually returned to the Sacramento River Basin in 2022, according to the PFMC’s Review of 2022 Ocean Salmon Fisheries(Published February 2023).

This was the third lowest return of salmon to the Sacramento watershed in the last 30 years - and is only half of the goal of 122,000 adults set by the council. The recreational fishing season was a bust on the Sacramento, Feather and American rivers as the fish returned to low, lethally warm water conditions. 

The spawning escapement of winter-run Chinook salmon, an endangered species under both the State and Federal Endangered Species Acts, to the Sacramento River was also dismal. Spawner escapement of these endangered fish in 2022 was estimated to be only 5,561 adults and 477 jacks. By contrast, 117,000 winter Chinook returned to the Sacramento River in 1969.

In addition, a record low number of endangered winter-run Chinook salmon fry migrated downriver from Redding to Red Bluff on the Sacramento River in 2022, according to  data collected by the U.S. Fish and Wildlife Service (USFWS) at Red Bluff Diversion Dam.

An estimated 158,764 fry (baby salmon) made it from below Keswick Dam to Red Bluff last year, compared to an average number of 1.3 million winter Chinook salmon. This is the second consecutive year that the service reported alarmingly low numbers of Chinooks.

Escapement of spring-run Chinook to the Sacramento River system in 2022 totaled only 6,245 fish (jacks and adults), with an estimated return of 4,473 to upper Sacramento River tributaries and the remaining 1,772 fish returning to the Feather River Hatchery.

Because of their low population levels, anglers have been prohibited from fishing for winter and spring-run Chinooks for decades as the fish move closer to extinction.   

Meanwhile, the California Department of Fish and Wildlife’s Fall Midwater Trawl Survey (FMWT) in 2022 caught zero Delta Smelt in the Sacramento-San Joaquin River Delta for the sixth year in a row.

The slender 2 to 3 inch fish that smells like cucumber was once the most abundant fish in the Delta. The smelt, found only in the Delta, is considered an indicator species that shows the relative health of the imperiled estuary.  

The results of the survey were summed up and analyzed in a memorandum from James White, environmental scientist for the CDFW’s Bay Delta Region, to Erin Chappell, Regional Manager Bay Delta Region, on Dec. 29, 2022: Memorandum: 2022 FMWT Annual Fish Abundance and Distribution.

The significance of the Delta smelt’s role in the Bay-Delta Estuary is enormous. ”Delta Smelt are the thread that ties the Delta together with the river system,” said Caleen Sisk, Chief of the Winnemem Wintu Tribe. “We all should understand how that affects all the water systems in the state. They are the irreplaceable thread that holds the Delta system together with Chinook salmon.” 
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