California (Illegally?) Weakens State Law Protections for Endangered Salmon

As the Sacramento Bee reported today, the California Department of Fish and Game yesterday issued a determination under the California Endangered Species Act (CESA) to allow the State Water Project to kill more threatened and endangered salmon and steelhead.  The request came from the California Department of Water Resources (DWR) on May 24th, even before DWR obtained a federal court injunction against Endangered Species Act protections for these fish through June 15, 2010.  (That’s right – for those who were unaware, the State of California, through DWR, has joined Westlands Water District as plaintiffs suing to overturn environmental protections for salmon and steelhead in California.)  

Until recently, DWR had never complied with CESA in its operation of the State Water Project (similarly, DFG has never required the Bureau of Reclamation, the operator of the CVP, to comply with CESA).   In 2009, DWR settled and was dismissed from state court litigation in the Watershed Enforcers case, in which it agreed to obtain CESA take authority for the first time.  Although DWR is no longer a party in the litigation, the case is presently on appeal, as some of the water contractors are making the audacious argument that CESA does not apply to the State of California – in other words, they argue that everyone else must protect endangered species, but the State need not comply with the law and can kill as many endangered fish as they want. 

In September 2009, in response to an August 5, 2009 request from DWR, DFG issued a consistency determination to DWR under CESA.  DFG determined that if DWR implemented the salmon biological opinion in its entirety, including fully implementing the Reasonable and Prudent Alternative, doing so would comply with the requirements of CESA.  The determination required that the BO be fully implemented.  Now, however, DFG has determined that the BO need only partially be implemented, at least for the next couple weeks.  That earlier determination has been replaced. 

This action by DFG raises alarm bells for those who care about California’s salmon fishery and the health of our Bay-Delta estuary, as there are significant questions as to the legality of DFG’s action.  For one thing, DFG can only issue a consistency determination based on an Incidental Take Statement under section 2080.1, but the Incidental Take Statement requires full implementation of the RPA, something that is not happening now.  Nor did DFG comply with CEQA in exercising its discretion to issue the determination, all the more ironic given the Federal Court’s emphasis on NEPA review.  And the extremely short time period for the review raises concerns about DFG's scientific and legal determinations.  Given DFG's important role in reviewing the Bay Delta Conservation Plan (BDCP), DFG’s action today is not a good sign for those who want to see science-based decision-making in the Delta that complies with the law.  These legal issues are certainly not new – the Watershed Enforcers case put a spotlight on the lack of CESA compliance, and my colleague blogged about them months ago.

Obviously, NRDC is disappointed with the federal Court’s decision earlier this week, which is bad news for the communities and jobs that depend on the health of the Delta and our salmon populations: fishermen and fishing businesses, the Winnemem Wintu Tribe, and Delta farmers, not to mention all of us who care about salmon and the Delta.  It marks a step back to the Wild West of a few years ago, when the SWP and CVP pumped unprecedented amounts of water from the Delta, and populations of salmon and other fish species in the Delta collapsed. 

Notwithstanding the Court’s ruling on the effects of increased pumping over the next 21 days, we agree with the National Academy of Sciences and the numerous other peer reviews that the protections in these biological opinions are “scientifically justified.”  Nearly every panel and process to consider the question has largely agreed:

  • The Delta Vision Strategic Plan (p. 83) concluded that “the flow and water quality standards of the Water Board’s Decision 1641 (D-1641) are increasingly recognized as inadequate,” and recommended increased Delta inflows and outflows. 
  • Nearly every expert that appeared before the State Water Resources Control Board in its Public Trust flow proceeding (including experts from DFG, USBR, USFWS, NMFS, and numerous environmental groups) testified that existing flows were inadequate, and that the Board should improve flows for fish (the major exception was, not surprisingly, DWR and the state and federal contractors, who argued that D-1641 was adequate).
  • This same Court concluded on July 18, 2008 that with the same minimal protections that are now in place under the State’s Bay Delta Water Quality Control Plan (D-1641), “project operations through March 2009 will appreciably increase jeopardy to the three [salmon and steelhead] species,” and in 2007 ordered pumping restrictions to protect delta smelt that are substantially similar to what is required by that biological opinion.

The Court did acknowledge that this injunction is not a precedent regarding what protections are necessary for the Bay-Delta in the future.  But undoubtedly, this ruling will increase the pressure in BDCP to weaken environmental protections to take ever more water out of the Delta. 

The Legislature created the Delta Stewardship Council last year to create an independent body to develop a plan for how to manage the Bay-Delta.  The recent actions by the State only serve to highlight how important it is to have the Council functioning as a truly independent watchdog over DWR, DFG and BDCP.  There are many hard working, dedicated scientists, lawyers and staff who work at DFG, but unfortunately, today’s decision inspires little confidence that DFG will uphold its legal responsibilities to safeguard the fish and wildlife of the Bay-Delta in the BDCP process.