[env-trinity] Lawsuit Challenges Federal Plan To Increase Delta Water Exports (Revised)

[Daniel Bacher]

Lawsuit Challenges Federal Plan To Increase Delta Water Exports

by Dan Bacher

The fight to restore salmon, steelhead and other fish in the Central Valley
and Bay-Delta Estuary, in view of the plans by the state and federal
governments to divert more northern California water, has resulted in the
formation of an unprecedented, broad based coalition of fishermen,
environmental groups and Indian Tribes over the past two years. The groups
have launched letter writing campaigns, held press conferences and
circulated numerous action alerts to stop water export plans and the
ironically named South Delta “Improvement” Project.

In the latest battle in the war for our fisheries, a diverse coalition of
commercial and recreational fishing groups, conservation organizations and
the Winnemem Wintu Tribe recently filed suit in federal court in Oakland
challenging government approval of a plan to significantly change water
management throughout the state.

The suit filed against the National Marine Fisheries Service (NMFS, also
called NOAA Fisheries), and the US Department of the Interior challenges an
October 2004 biological opinion concluding that the federal Bureau of
Reclamation (Bureau) and the state Department of Water Resources (DWR) could
strip away salmon habitat protections and increase water exports without
jeopardizing endangered Sacramento River winter-run chinook salmon,
threatened Central Valley spring-run chinook salmon, threatened Central
Valley and Central California Coast steelhead, and threatened Southern
Oregon/Northern California Coast coho salmon.

The lawsuit also challenges the Bureau’s long term operating plan (OCAP) for
the federal Central Valley Project and State Water Project, due to the
Bureau’s failure to prepare an environmental impact statement (EIS) on the
plan, according to Mike Sherwood, lead attorney for Earthjustice, which is
representing the organizations in the lawsuit.

“We filed this suit because the biological opinion that NMFS released said
the Central Valley Project  plan wouldn’t jeopardize these species,” said
Sherwood. “However, their conclusion was bogus, since it was contradicted by
the facts and conclusions of the agency’s own scientists.”

Controversy over the NMFS opinion began well before its release and
continues today, according to Sherwood. An early draft leaked to the press
found that the Bureau’s increased water exports would jeopardize multiple
fish species, but this conclusion was reversed in the final version.

“Whereas the draft biological opinion concluded that the plan would
jeopardize winter run chinooks, spring run chinooks and Central Valley
steelhead, it was mysteriously changed to a no jeopardy opinion with no
additional scientific studies,” said Sherwood.

This flip-flop sparked a congressional investigation spurred by Congressman
George Miller (D-Martinez), the foremost water policy expert in Congress and
the co-author of the landmark Central Valley Project Improvement Act of
1992. In July, the Dept. of Commerce’s Office of Inspector General issued a
report finding that NMFS officials violated procedural rules in reaching
this conclusion and raising questions about the integrity of the opinion.

The Inspector General’s report found that one of the regional officials cut
out of the review process said she would not have signed off on the final
document “because of her belief that there is a basic disconnect between the
scientific analysis and the conclusion.”

“Exporting more water south is going to cause huge problems for the salmon
we have fought so hard to protect,” said Sherwood. He emphasized that the
plan would:

• Move the temperature control point for winter run chinook 19 miles upriver
on the Sacramento, directly endangering winter run recovery.

• Eliminate the cold water storage requirement in Shasta and making it just
a “target.”

• Increase the rate of Delta water exports by 27 percent.

“The biological opinion’s conclusions contradict its own findings in an
obvious attempt to conform with a preordained outcome,” added Hal Candee,
Senior Attorney and co-counsel from NRDC.

A recent letter from state water and wildlife officials to State Senator
Mike Machado expressed concern about environmental impacts of the plan. On
May 17, 2005, the Directors of DWR and the California Department of Fish and
Game wrote that “the State anticipates increased impacts to winter-run and
spring-run chinook will occur as a result of the changes in water project
operation and less stringent temperature compliance requirements.”

Central Valley salmon and steelhead depend on adequate flows in the rivers
and through the Delta and require cold water for successful migration and
reproduction. “Government scientists who wrote the biological opinion
managed to include several key pieces of evidence in the document showing
that the proposed operational changes would eliminate crucial spawning
habitat and likely lead to temperature increases that would be deadly to the
fish,” noted Sherwood.

The suit also comes against a backdrop of new state monitoring data showing
an unprecedented decline in the Delta food chain and fish species, including
threatened delta smelt and striped bass. Scientists note that record high
water exports have occurred in three of the last five years.

“The Delta is already in crisis, the data are in,” said Tina Swanson, Ph.D.,
Senior Scientist at the Bay Institute. “This biological opinion allows new
degradation of upstream habitats, including reversing protections we know
have helped salmon populations during the past ten years. This is not the
time to be adding to the already enormous stresses on the ecosystem and the
species that depend on it.”

To oppose the raising of Shasta Dam – a key component of the federal plan to
increase Delta exports –the Winnemem Wintu Tribe last September held a war
dance at Shasta Dam.

“Our brothers, the salmon, are already listed as endangered and threatened
due to the dams and their operating procedures,” noted Gary Mulcahy of the
Winnemem Wintu Tribe, whose history and survival has been inextricably tied
to the salmon of the Central Valley. “This is not just a question of just
water and fish. It is the basic question of life itself. We ask, how much
more ‘no jeopardy’ can the salmon withstand?”

“When political appointees manipulate the findings of government staff
scientists, we are all in trouble,” summed up Zeke Grader, executive
director of the Pacific Coast Federation of Fishermen’s Associations.

Other plaintiffs in the lawsuit include the Baykeeper and its Deltakeeper
Chapter, California Trout, Friends of the River, Northern California Council
of the Federation of Fly Fishers and Sacramento River Preservation Trust.

I completely support the plaintiffs in their legal battle against NOAA
Fisheries, the government agency supposedly in charge of protecting fish.
The failure of the Bush administration to protect and restore Delta and
Central Valley fisheries has left fishing groups, environmental
organizations and the Winnemem Wintu Tribe no choice but to contest the
plans for increased exports through litigation. Let’s hope that they succeed
in their battle to overturn the biological opinion that justifies a massive
increase in Delta water exports!

For more information, go to www.earthjustice.org.