[env-trinity] Environmentalists' lawyers say U.S. Fish and Wildlife approved pumping of Delta water despite dwindling smelt

[Tom Stokely]

DELTA ISSUES:

Fish data ignored, groups contend; Environmentalists' lawyers say U.S. Fish and Wildlife approved pumping of Delta water despite dwindling smelt

Contra Costa Times – 4/27/07

By Mike Taugher, staff writer

 

FRESNO -- The federal agency responsible for protecting endangered species ignored information that showed the Delta smelt population crashed to its lowest level before approving a plan to increase water pumping out of the Delta, lawyers for environmental groups charged Thursday. 

 

By disregarding that information, the U.S. Fish and Wildlife Service allowed farms and cities across the state to take water that was needed to help prevent the fish from going extinct, environmentalists contend. 

 

The charge came during a court hearing in which environmentalists appeared to gain ground in their attempt to overturn a critically important permit that allows massive water-delivery projects near Tracy to operate, even though the pumps kill endangered smelt. In a separate lawsuit, they also are challenging a permit to kill salmon. 

 

Lawyers for state and federal water agencies contend the permit is valid and should be upheld. 

 

The hearing Thursday was the latest in a series of fast-moving court actions that are eroding the legal foundation upon which California's major water-delivery systems are allowed to operate. 

 

Earlier this month, a judge in Alameda County Superior Court ruled that the larger of the two water projects, the State Water Project, is operating illegally because it lacks smelt and salmon permits required under the state's endangered species law. 

 

Sensing that they are likely to lose another lawsuit, lawyers for water agencies urged U.S. District Judge Oliver Wanger not to immediately revoke the permit for the operations of the state pumps and the federal Central Valley Project. 

 

"We would not like to see these two projects turned into a criminal enterprise because of the lack of an endangered species permit," said Gregory Wilkinson, a lawyer for the State Water Contractors, an association of water agencies that deliver water from the state-owned pumps to 25 million people from the East Bay to San Diego. 

 

Wanger hinted strongly that he would rule in favor of the environmental groups, but he added that he did not intend to do anything "draconian," perhaps signaling he would not immediately revoke the permit or order pumps to be shut down. 

 

Nevertheless, a finding that the federal permit is inadequate would deal a major blow to state water officials who are trying to stave off a looming court order in the Alameda County case that threatens to force them to cut off water deliveries around June 9. 

 

"If he says this thing is invalid, it will be very embarrassing" to state water officials, said Trent Orr, a lawyer representing the Natural Resources Defense Council and other environmentalists in the lawsuit. 

 

The state's plan to avert the shutdown is to get a determination from the state Department of Fish and Game that federal endangered species permits are sufficient. 

 

But Fish and Game officials, who have said it will be difficult to endorse the federal permits because of widely acknowledged flaws, will have an even harder time if the federal permit is struck down. 

 

"What does it mean to say this thing is consistent with something a federal judge has said is invalid?" Orr said. 

 

Because of the phenomenal economic damage that would ensue, few believe the court actions will result in an extended cutoff of water deliveries. However, Thursday's hearing did appear to strengthen the hand of regulators if they want to obtain water for the Delta ecosystem that now goes to farms and cities. 

 

Outside court, Wilkinson said state regulators could still endorse the federal permits. In part, he said, they appear to be working better this year because of adjustments in water operations. That could justify such a move on the part of state regulators, he said. 

 

At the time the federal permit was issued in February 2005, biologists were circulating among themselves and to water managers information showing that Delta smelt and other fish in the Delta's open waters were in a worrying free fall. 

 

And, they were reporting, the pumps were believed to be at least part of the cause of the emerging ecological crisis, along with invasive species and pollution. 

 

Environmentalists also charged in the lawsuit that the permit did not take into account the future impact of climate change. And the permit relies too much on the discretion of agencies instead of imposing strict requirements to protect the fish, Orr argued. 

 

Water agencies argued Thursday that the flexibility allows agencies to conserve fish while balancing competing demands for water. 

 

But Wanger appeared skeptical. 

 

"It appears that what has been done hasn't been effective, and therefore the answer is trust us?" he asked. "Is that what the law calls for?" #

http://origin1.contracostatimes.com/news/ci_5764443

 
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