On December 22, a federal appeals court in San Francisco ruled that a 2009 “biological opinion” that protects the habitat of endangered salmon in the San Joaquin and Sacramento Rivers from increased water exports to San Joaquin Valley agribusiness and Southern California water agencies would stand in its entirety.
The decision by the Court of Appeals for the Ninth Circuit preserves “science-based guidelines” for managing water flows through the San Francisco Bay-Delta at levels that protect imperiled fish and orcas and help to restore the Delta ecosystem, according to a statement from Earthjustice.
A three-judge panel ruled in favor of the National Marine Fisheries Service (NMFS) in appealing a lower court’s decision that would have invalidated several of the water pumping limits and other protections established under the biological opinion.
Judge Richard Tallman, who wrote the decision, said the panel agreed that the federal scientists “used the best scientific data available, even if that science was not always perfect.”
Tallman wrote, “Specifically, the panel found that: (1) the Service acted within its substantial discretion when it used raw salvage data instead of data scaled to fish population to set flows in the Old and Middle Rivers; (2) the Service’s jeopardy opinion components were not arbitrary and capricious as they pertained to the winter-run Chinook, the Southern Resident orca, the steelhead critical habitat, and the impact of indirect mortality factors on the listed species; and (3) the Biological Opinion’s challenged reasonable and prudent alternative actions were not arbitrary and capricious.”
The legal opinion is available here.
Earthjustice and the Natural Resources Defense Council represented the Winnemem Wintu Tribe, Sacramento River Preservation Trust, San Francisco Baykeeper, Pacific Coast Federation of Fishermen’s Associations, Northern California Council of the Federation of Fly Fishers, Friends of the River, California Trout and Bay Institute as defendant intervenors.
Earthjustice said the ruling reinforces landmark federal management plans for the Central Valley Project and State Water Project that protect the watershed’s imperiled fish and their critical habitat. The Plaintiffs, including the San Luis & Delta-Mendota Water Authority and the Westlands Water District, sought to invalidate the 2009 biological opinion.
Other plaintiffs in the case include the Stockton East Water District, Metropolitan Water District of Southern California, Oakdale Irrigation District, South San Joaquin Water District, Kern County Water Agency, Coalition for a Sustainable Delta, an “Astroturf” group set up by Stewart Resnick of Paramount Farms, and the State Water Contactors.
The invalidation of the opinion would have dramatically increased exports of water from the Bay Delta, eviscerating protections for Sacramento River winter-run Chinook salmon, Central Valley spring-run Chinook salmon, Central Valley steelhead, the southern distinct population segment of north American green sturgeon, and southern resident killer whales, all species protected under the federal Endangered Species Act, according to Earthjustice.
The southern resident killer whales are imperiled by declines in Central Valley salmon, since salmon are one of their major sources of forage.
“The effect of California’s drought cannot be blamed on these protected fish and mammals,” said Stacey Geis, Earthjustice managing attorney. “It was good to see the Ninth Circuit recognize that science not politics should guide our management of water flows.”
“Siphoning more water out of the Bay-Delta to industrial scale farms in the semi-arid southern parts of the state would only doom the health of the Bay-Delta and the complex web of life it supports. The salmon biological opinion is a keystone element of the effort to restore the Bay-Delta to health and to keep California’s commercial and recreational fishing industries from collapsing. Today’s decision will keep those flows in place and protect the Delta,” Geis concluded.
Bob Muir, spokesman for the Metropolitan Water District of Southern California (MWD), said, “The decision is not surprising, since it was similar to the recent Delta smelt decision, and the Delta smelt case set the bar. We have petitioned the US. Supreme Court to hear the Delta smelt case.”
I am very glad that the court upheld protections for Central Valley salmon and steelhead, green sturgeon and southern resident killer whales, especially after Hal Bonslett, the late publisher and co-founder of the Fish Sniffer magazine, and I played a key role in getting winter-run Chinook salmon listed under the state and federal Endangered Species Acts. We spent many hours in the late 1980s going to Fish and Game Commission and other meetings and writing articles supporting the listing at a time than many recreational and commercial fishing groups did not back listing the fish, fearing that it would result in inevitable fishing restrictions.
Hal and I argued, along with the leaders of the Sacramento River Preservation Trust, Tehama Flyfishers and other grassroots groups, that the winter-run Chinook population was so low – down to 200 fish at one point – that dramatic, drastic action had to be taken to save the fish from going over the abyss of extinction.
Although the winter run hasn’t recovered to historical levels like we hoped it would, due to constant attacks by the Westlands Water District and corporate agribusiness interests, the ESA listing by the state and federal governments did prevent the winter run Chinook from becoming extinct.
I remember one Department of Fish and Game official at the time claiming the population level of winter run Chinook was “stable” when in fact the population had declined to the lowest level ever recorded. Fortunately, a brave federal scientist exposed the DFG’s claim to be completely false.
Tunnel plan and Shasta dam raise threaten salmon and steelhead
While this court decision is a victory, Central Valley winter Chinook salmon and other fish species are threatened by Governor Jerry Brown’s Bay Delta Conservation Plan (BDCP) to build the peripheral tunnels, a $68 billion project designed to facilitate the export of more water to corporate agribusiness, Southern California water agencies and oil companies conducting fracking and steam injection operations in Kern County. The construction of the massive tunnels under the Delta would hasten the extinction of Central Valley salmon, Delta and longfin smelt and green sturgeon, as well as imperiling the salmon and steelhead populations of the Trinity and Klamath rivers.
In addition, the Bureau of Reclamation continues to fast-track a plan to raise Shasta Dam that also threatens winter-run Chinook salmon, steelhead and green sturgeon. The plan is opposed by the Winnemem Wintu Tribe, other Tribes, fishing groups and enviromental organizations. Instead of raising the dam, the Bureau of Reclamation should be working with the Winnemem Wintu to bring back the native run of McCloud River winter-run Chinook salmon from New Zealand to be reintroduced to the fish’s original spawning grounds above Shasta Reservoir.
To read about the Winnemem Wintu’s War Dance in September against the Shasta Dam raise, go here.
The BDCP and Shasta Dam raise proposal are not the only challenges that winter run Chinooks and other Central Valley salmon populations face in their battle for survival. Many endangered Sacramento River winter run-Chinook salmon are currently taking a wrong turn into a drainage ditch in the Yolo Bypass – a mistake that eliminates their chance of spawning and endangers future generations.
Over 60 adult salmon were found dead recently in a drainage canal in the Yolo Bypass. The dead salmon, weighing between 5 and 30 pounds, were scattered along the banks and in the water. The cause of death was not immediately known, but the adult salmon were lost in a drainage system guaranteed to block their successful reproduction.
According to Severn Williams of Public Good PR, “Keeping the salmon on course would require a low-cost, easy engineering fix on the part of the California Department of Water Resources and the Federal Bureau of Reclamation, but these public agencies are dragging their feet, and more fish are lost each day. If DWR and BOR act soon with a simple fix, this endangered species could have a greater chance of recovery in the years to come.”
Dan Bacher is an environmental journalist in Sacramento. He can be reached at: Dan Bacher firstname.lastname@example.org.