San Francisco -- The Bay Institute, Center for Biological Diversity, and Natural Resources Defense Council today sent a 60-day notice letter of intent to sue the U.S. Fish and Wildlife Service for violating the Endangered Species Act by failing to respond to a March 2006 petition requesting changing the federal listing of the critically imperiled delta smelt (Hypomesus transpacificus) from a threatened to an endangered species. The groups also sent an urgent request letter today to the California Fish and Game Commission requesting that the agency reconsider an emergency state listing of endangered for the delta smelt under the California Endangered Species Act.
California Department of Fish and Game
data released this month on juvenile delta smelt abundance from 2007 indicate a staggering, possibly fatal drop in the delta smelt population. Spring trawl surveys looking for juvenile smelt in the Delta from March through May found just 25 juvenile delta smelt, the smallest number ever recorded, and most trawls caught no smelt at all. Juvenile smelt numbers are 92 percent lower than in 2006, which was a record low. So far this year the federal pumps in the Delta have killed nearly three times more young delta smelt than have been collected during the entire survey. On May 15 the Delta Smelt Working Group, comprised of agency biologists, declared that delta smelt are “critically imperiled” and that an "emergency response" is warranted.
“Scientists have been warning that delta smelt was on the brink of collapse for the past three years,” said Dr. Tina Swanson, senior scientist with the Bay Institute. “These same scientists have repeatedly recommended specific management actions that would help the fish, virtually none of which have been implemented by the state and federal agencies responsible for protecting this endangered species. The delta smelt’s current condition is a tragedy – but it should be no surprise to anyone who was paying attention to how this vital ecosystem was being mismanaged.”
In response to the new data, the Working Group urgently recommended that the state and federal water project change their operations to eliminate reverse flows in Delta channels, prevent further losses of the fish to the pumps and allow the remaining population to move safely downstream. The meager response by water project agencies — slight reductions in exports and partial opening of a single Delta channel barrier — has failed to satisfy the Working Group objectives. As of yesterday, state and federal fisheries agencies have failed to require compliance with the Group’s recommendation.
"Instead of enforcing existing environmental laws to protect native fishes and the Delta, Governor Schwarzenegger could turn out to be The Terminator for the delta smelt,” said Jeff Miller with the Center for Biological Diversity. “He is allowing the state water and fish agencies to continue to evade their legal and resource-management responsibilities in the Delta while we all watch the ecosystem’s best indicator species, the delta smelt, fade to extinction. If this business-as-usual approach continues, today it’s the delta smelt and tomorrow it could be the longfin smelt, Chinook salmon and the Sacramento splittail.”
Current water-management operations in the Delta are not only driving the delta smelt (and other species) toward extinction; they are also illegal, according to a recent court ruling. In January, an Alameda County Court ruled that the California Department of Water Resources had been illegally pumping water out of the Delta without a permit to kill delta smelt and other fish species listed under the California Endangered Species Act. In response, the state agencies have attempted to evade compliance with the law for another year by relying on a memorandum of understanding that anticipates a future “consistency determination” based on as-yet unwritten federal permits that the agencies themselves do not expect to be completed before April, 2008.
“As the delta smelt goes, so goes the entire delta,” said Kate Poole, an attorney with the Natural Resources Defense Council. “If this little fish goes extinct, it will irreversibly damage the West Coast’s biggest estuary. It could lead to a cascading series of fish extinctions in California’s most important source of water. That’s not just bad for fish; it’s bad for all of us who depend on the delta for clean, healthy drinking water and agricultural irrigation supplies.”
The conservation groups submitted petitions in March 2006 to the Fish and Wildlife Service and February 2007 to the Commission to uplist the smelt’s federal and state status to endangered, a change necessary to compel fisheries agencies to implement recommended actions needed to protect the smelt and its Delta habitat. The rationale for emergency action was the delta smelt population plummeting to the lowest levels ever recorded, new population viability analyses indicating that the species was at imminent risk of extinction, and increasing magnitude and frequency of known threats to the species and its habitat, such as massive water exports. In June 2006 the Fish and Wildlife Service made a determination that emergency reclassification to “endangered” was not warranted, but that if conditions changed, the Service could develop an emergency rule. The Service has since failed to respond to the petition, though a 90-day finding was due in June 2006 and a 12-month finding was due on March 9, 2007.
On March 30, 2007, Fish and Game recommended that the Commission not take emergency action but rather proceed with a standard rulemaking for the delta smelt and at its April 12, 2007 meeting, the Commission denied the request for emergency action. On April 19, Fish and Game recommended a positive 90-day finding on the state petition and the Commission must make a finding at its June meeting.
The delta smelt is not the only fish species facing extinction in the Delta. Since 2002, scientists have also documented catastrophic declines of longfin smelt, threadfin shad, Sacramento splittail and striped bass. Numbers of white and green sturgeon in San Francisco Bay and the Sacramento River have fallen to alarmingly low levels as well, and the green sturgeon was federally listed as threatened in 2006.
The Sacramento splittail was listed as a threatened species under the federal Endangered Species Act in 1999, but was removed from the list in 2003 and stripped of protections by former Bush administration official Julie MacDonald, who resigned April 30 as deputy assistant secretary of the Department of Interior. MacDonald was being investigated by the office of the inspector general for altering Fish and Wildlife Service scientific reports on endangered species and improperly leaking internal reports to industry groups. A congressional inquiry has been launched to determine if MacDonald engaged in unlawful activity in delisting the splittail, since she edited the decision on the species in a manner that appeared to benefit her financial interests. MacDonald owns an 80-acre farm in Yolo Bypass, a floodplain that is key habitat for the splittail.