Settlement on pumping delta water reached

Issue Date: March 2, 2011
By Ching Lee

A settlement has been reached between the state and federal governments, farmers, water contractors and environmental groups to allow more water to be pumped through the delta this spring while still providing protection to the delta smelt.

The temporary agreement, approved last week by U.S. District Judge Oliver Wanger, lasts through June and applies to the current water year only. It gives state and federal operators of the delta pumps an interim plan for delivering water to San Joaquin Valley farms and Southern California cities while federal scientists work to revise a new regulatory plan on delta pumping that protects the tiny fish.

In December, Wanger invalidated the U.S. Fish and Wildlife Service's regulatory plan, also known as a "biological opinion," for restricting water exports without adequate scientific justification and ignoring avoidable impacts on the economy. Federal regulators are now developing a new biological opinion.

Since Wanger's ruling did not establish a new pumping regime, the settlement maintains the essential protections in the biological opinion.

"This settlement does not change the basic requirements of the Endangered Species Act, which prohibits any government action from jeopardizing a listed species," said Chris Scheuring, managing counsel for the California Farm Bureau Federation's Natural Resources and Environmental Department. "It is, however, perhaps the best possible short-term development to ease some of the pumping restrictions without damaging the smelt."

The interim plan eases pumping restrictions somewhat in the south delta, allowing the State Water Project and Central Valley Project to draw more water if the best available science and ongoing real-time assessment of conditions in the delta show that additional pumping would not harm the smelt and its critical habitat.

As part of a new "enhanced coordination process," water contractors and environmental groups will take part in weekly meetings that will inform the Fish and Wildlife Service's assessment of delta conditions and risks to the smelt. The new process is aimed at increasing transparency in decisions to limit pumping and provides the court and all stakeholders notice of any changes.

The interim remedy makes clear that it does not affect restrictions designed to protect salmon and pending litigation concerning that biological opinion. Smelt remedies beyond June 30 will be set presumably later this spring, Scheuring noted.

Federal controls over how much water is pumped south of the delta are usually lifted at the end of each June, also the end of the smelt's spawning period, when the fish have traveled a safe distance from the pumps. There have been no pumping restrictions so far this year.

"The settlement is good news for many farmers this year," Scheuring said. "However, it doesn't change the fact that we continue to play catch-as-catch-can for delivery of project water to service areas south of the delta. Farm Bureau continues to pursue the long-term solution set in that regard."

Mark Cowin, director of the California Department of Water Resources, called the settlement "an important step forward to address one of the many complex issues associated with water operations in the delta."

In a statement, Cowin said, "Environmental organizations, state and federal agencies, water contractors and agricultural interests working together have achieved a reasonable resolution. The Department of Water Resources will now be able to more effectively operate the State Water Project over the next several months in a manner that is protective of delta smelt."

In another legal development concerning the delta, a pending agreement between the state Department of Fish and Game and the Coalition for a Sustainable Delta could relax size and catch fishing limits on the striped bass, a non-native, predatory fish known to be contributing to low numbers of returning salmon in the delta.

Wanger is scheduled to consider the agreement on March 17. If he approves the settlement, Fish and Game, along with the National Oceanic and Atmospheric Administration's National Marine Fisheries Service and the U.S. Fish and Wildlife Service, will develop a proposal to change the current striped bass sport fishing regulation that will allow anglers to keep more of the fish they catch.

Also under the pending settlement, the department has agreed to reserve $1 million to support research on predation of protected fish species in the delta.

Matt Mahon, spokesman for the coalition, said the case was settled because the state's own scientists "have said striped bass predation is an issue and they agreed with our position.

"We know their science. We know that they are working in the right direction," Mahon said. "We don't know exactly what that's going to look like once they put pen to paper though."

In addition to striped bass predation, researchers have cited other causes of declining salmon numbers, including poor ocean conditions, killer whales and seals. Yet regulation in the past has focused on pumping operations in the south delta, Scheuring noted. Federal regulators have all but shut down the commercial salmon fishery off the California coast in recent years.

According to the settlement, if the coalition agrees with the department's regulatory proposal, then a recommendation will be made to the Fish and Game Commission to adopt the new rules. If the coalition objects to the proposal, then the settlement ends and the lawsuit continues.

The coalition initially recommended no limits on fish take and size. Mahon said he believes Fish and Game will remove some of the restrictions, but it won't be a complete overhaul as the coalition originally wanted.

"It'll be a very science-based solution," he said. "That's why we are moving forward with this settlement. We believe we've reached a place where (Fish and Game is) going to move forward with something that will be beneficial to the delta and to the smelt populations."

(Ching Lee is an assistant editor of Ag Alert. She may be contacted at

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.

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