Court ruling stops water releases to benefit delta smelt

A federal judge in Fresno took issue last week with a U.S. Fish and Wildlife Service decision that could have required reserving an estimated 300,000 acre-feet or more of stored water to protect an endangered Sacramento-San Joaquin Delta fish species. U.S. District Judge Oliver Wanger issued a preliminary injunction that blocks that agency recommendation, which is included in a revised biological opinion.

The judge concluded the action would provide little or no benefit to the threatened delta smelt.

Because of the potential impact of fall water releases to the state's water supplies, public water agencies filed for an injunction earlier this year to prevent implementation of the "Fall X2" provision in the newly revised biological opinion, one of the more restrictive elements of a previously overturned biological opinion. X2 is the fluctuating line where fresh water from Sierra Nevada watersheds and salt water from San Francisco Bay meet in the delta.

The Fish and Wildlife Service had proposed releasing fresh water from the state's reservoirs this year to move the X2 location westward toward the Golden Gate Bridge. The proposal was based on a highly disputed hypothesis that moving this intersection of salt water and fresh water would lead to increased delta smelt populations.

Under the federal proposal, the State Water Project would have faced losses of 300,000 acre-feet to as much as 670,000 acre-feet of water—enough to serve more than 4 million people for up to a year.

In his ruling, Wanger wrote that by erroneously bypassing the National Environmental Policy Act, federal wildlife agencies "completely abdicated their responsibility to consider reasonable alternatives to the Fall X2 Action that would not only protect the species, but would also minimize the adverse impact on humans and the human environment."

Wanger said there is "essentially no biological evidence" to support the necessity of the specific X2 requirement set to be triggered Sept. 1 in this designated "wet" water year.

Instead, the judge ordered a different X2 location that analysts said would greatly minimize the impacts of water releases from storage facilities.

"This ruling is good for farmers and urban water users," said Chris Scheuring, California Farm Bureau Federation managing counsel for natural resources and the environment. "While it helps ensure water availability from year to year, the bigger picture is that we continue to have a back-and-forth in Judge Wanger's court over science and the delta smelt."

Scheuring said questions remain, including what kinds of management actions are factually required to save the delta smelt and about the solidity of the science underpinning those management decisions.

He cautioned that the judge's preliminary injunction does not suggest that delta smelt populations are improving.

"The population continues to be in bad shape and the species is protected under the federal Endangered Species Act," Scheuring said.

In a prepared statement after the federal court's ruling, Westlands Water District General Manager Tom Birmingham said, "This is another important step forward for good science, ensuring that our efforts to protect the delta will be guided by the best available data and not by outmoded assumptions or fanciful speculation."

Birmingham noted that because of hydrologic conditions this year, Westlands and other water agencies served by the federal Central Valley Project were not directly threatened by the federal fish and wildlife agency's plans.

"What we're doing, however, is watching the ball going back and forth in court between environmental interests and government agencies," Scheuring said. "The litigation tennis continues, but we really need to think about long-term solutions for restoring the delta and ensuring water supply reliability for all of California."

(Kate Campbell is an assistant editor of Ag Alert. She may be contacted at kcampbell@cfbf.com.)