On October 1, the Bureau of Reclamation formally began the multi-year process to replace the Trump Administration’s blatantly unlawful biological opinions for the operation of the State Water Project and federal Central Valley Project in California’s Bay-Delta watershed by requesting what is known as “reinitiation of consultation.” This is an important first step—after all, recognizing and admitting you have a problem is the first step on the road to recovery. But reinitiation of consultation does not immediately change how these unsustainable water projects operate, and while the Biden Administration has recognized they need to change these operations they still have not yet admitted that these biological opinions are unlawful.
The Trump Administration’s biological opinions were the result of scientific misconduct, political interference, and bias (which was documented by federal agency staff, including in this memo). The end result is nothing short of a plan for extinction that is playing out before our eyes. This year the National Marine Fisheries Service estimates that the Central Valley Project will kill more than 80% of the endangered winter-run Chinook salmon below Shasta Dam as a result of lethal water temperatures: this outrageous result is authorized by these biological opinions, which actually allow 100% mortality over 3 consecutive years before they are violated (even though salmon generally live for 3 years). As a result of temperature dependent mortality, low flows, and other natural and human-cause mortality, it is likely that of the thousands of winter-run Chinook salmon that returned to spawn this fall, laying between 20 and 30 million eggs, only 2 percent will survive the short distance to the Red Bluff Diversion Dam, and far fewer will survive their migration through the Delta to the ocean.
What’s more, this year the Bureau of Reclamation and California Department of Water Resources have repeatedly violated the wholly inadequate environmental protections in these biological opinions. The projects violated water temperature requirements on the American River (harming steelhead and fall-run Chinook salmon), violated Delta outflow standards in April (harming Delta Smelt and Longfin Smelt), and violated Delta water quality standards and installed a physical barrier in the Delta this summer that was not permitted under the biological opinions (harming not just Delta Smelt, but also worsening water quality for some communities in the Delta).
Our native fish populations are plummeting towards extinction because the CVP and SWP continue to prioritize allocating millions of acre feet of water to their contractors (particularly so called Settlement and Exchange Contractors) during the drought over actually protecting fish and wildlife. It is not true that this simply a result of the drought: as the State Water Board wrote earlier this spring, “Although the current violations are exacerbated by the extreme dry conditions, they are in part the result of the overallocation of Project water during dry conditions.”
And if next year is dry, it will be even worse for salmon and other native fish species—and for the thousands of fishing jobs that depend on healthy salmon runs, the communities in the Delta that depend on meeting water quality standards, and native American Tribes for whom salmon and other native fish are a sacred part of the world. Having drained the reservoirs to record or near record low levels in order to deliver millions of acre feet of water this year, slaughtering native fish and wildlife in the process, California is woefully unprepared for another dry year. DWR is already planning to petition the State Water Board to waive even more water quality standards that protect the environment next year, so that they can continue to deliver unsustainable amounts of water to their contractors. The State and Feds must curtail water deliveries to their contractors next year—including their Settlement and Exchange Contractors—in order to provide cold water to salmon and before considering waiving water quality standards, except for water deliveries for human health and safety or to wildlife refuges.
Nearly 10 months after President Biden issued an executive order which directed the agencies to review these biological opinions on his first day in office, the agencies have finally started the process of undoing the damage caused by Trump and his minions (some of whom are still working for the Department of the Interior!). Yet our native fish and wildlife can’t wait three years for the SWP and CVP to be operated pursuant to scientifically credible biological opinions, particularly during a drought when the CVP and SWP are already violating the terms of those woefully inadequate biological opinions.
Last year, NRDC and our partners filed motions for preliminary injunctions to prevent the continued implementation of the Trump Administration’s biological opinions, trying to prevent the harm that has occurred these past two years. That motion was granted in part by the Court, and denied in part, even as the Biden Administration continued to defend these indefensible biological opinions as complying with the ESA. Now that they’ve formally reinitiated consultation, the Biden Administration should stop defending the lawfulness of the Trump Administration’s biological opinions.
Continuing to operate under this plan for extinction for another year would be outrageous and unlawful. We’re in court to make sure that doesn’t happen.