[env-trinity] Groups sue Brown administration over permit to kill endangered salmon, smelt in Delta Tunnels

[Dan Bacher]

https://www.dailykos.com/stories/2017/9/27/1702184/-Groups-sue-Brown-administration-over-permit-to-kill-endangered-salmon-smelt-in-Delta-Tunnels


The mouth of the Feather River at Verona. Photo by Dan Bacher.

Groups sue Brown administration over permit to kill endangered salmon,  
smelt in Delta Tunnels

by Dan Bacher

Four environmental groups on Friday, September 22, filed a lawsuit  
challenging the Brown administration’s permit to kill endangered  
salmon and smelt in the proposed Delta Tunnels project.
The Center for Biological Diversity, Bay Institute, Natural Resources  
Defense Council and San Francisco Baykeeper filed the suit in  
California Superior Court in Sacramento,  represented by the nonprofit  
environmental law firm Earthjustice.

On July 28, the California Department of Fish and Wildlife (CDFW),  
under the helm of Director Chuck Bonham, issued an “incidental take  
permit” for the construction and operation of California WaterFix in  
“compliance” with Section 2081(b) of the California Endangered Species  
Act (CESA).

This suit is the first to challenge CDFW’s  issuance of a “take”  
permit for the tunnel operations. Representatives of the groups said  
the agency “improperly authorized” the California Department Water  
Resources to “kill and harm” state-protected fish species, including  
Sacramento River winter-run and spring-run chinook salmon, longfin  
smelt and Delta smelt.

Ironically, the mission of the CDFW “is to manage California's diverse  
fish, wildlife, and plant resources, and the habitats upon which they  
depend, for their ecological values and for their use and enjoyment by  
the public.”

But according to tunnels opponents, the CDFW is failing in its mission  
to “manage” California’s diverse fish populations by approving the  
take permit.

“This is an unjustifiable permit,” said Jeff Miller, conservation  
advocate for the Center for Biological Diversity (CBD), in a phone  
interview. “The main thing is that the department appears to be doing  
everything they can to drive endangered fish species to extinction.  
The tunnels will have an impact on river flows at a critical time for  
salmon and smelt. They will reduce flows needed for the survival of  
the winter run, spring run and smelt.”

To grant a “take permit” under the CESA, the agency has to show how  
the project won’t jeopardize the continued existence of endangered  
species. Miller said the “mitigation” in the permit wouldn’t address  
the main problem of reduction in water flows on the Sacramento River  
and Delta that would take place if the project is built.

“They can pretend they are making up for water diversions at a  
critical time for these fish by throwing money at ‘habitat  
restoration,” but you just can’t mitigate for the taking of the water  
from these fish that essential for them to thrive,” Miller said.

The Department also violated CESA by failing to use the “best  
available science” on the impacts of the tunnels and associated water  
diversion, noted Miller.

Miller emphasized, “It’s time to kill this misguided tunnels project  
once and for all and focus on improving fresh water flows to restore  
the Delta.”

The tunnels project, renamed the California WaterFix in 2015, would  
divert massive amounts of fresh water from the Sacramento-San Joaquin  
River Delta to San Joaquin Valley agribusiness interests and Southern  
California water agencies, doing enormous harm to imperiled Central  
Valley salmon runs, declining Delta fish populations and the Bay-Delta  
ecosystem.

“State officials from the governor on down falsely claim that WaterFix  
would improve conditions for critically endangered native fish,  
including California’s once abundant chinook salmon,” said Trent Orr,  
Earthjustice staff attorney. “But disrupting a vast area with decades  
of construction to take even more fresh water from an already degraded  
Delta would hasten these species’ demise, not restore them to healthy  
populations.”

The groups said the California WaterFix is only the latest in “a long  
line of water diversion projects intended to remove vast quantities of  
water from the Delta before it reaches San Francisco Bay.”

The project, a boondoggle that would cost anywhere from $17 billion to  
$67 billion depending on who you talk to, proposes to construct two 35- 
mile tunnels, each four stories high, to divert water from the  
Sacramento River in the north Delta to Central and Southern California.

“The water diversions would degrade habitat conditions for declining  
runs of salmon and smelt, kill young fish at diversion points, disrupt  
the estuary’s food chain and increase salinity in the Delta,”  
according to the groups.

Erica Maharg, managing attorney at San Francisco Baykeeper, pointed  
out how the tunnels project would devastate the San Francisco Bay  
ecosystem also.

“The Bay ecosystem needs freshwater inputs to survive and be healthy,”  
she said.  “By allowing the proposed tunnels to export too much  
freshwater for central and Southern California, the Department of Fish  
and Wildlife is shirking its duty to protect the already threatened  
and endangered fish of San Francisco Bay.”

"Construction and operation of the tunnels will devastate California's  
native fisheries, threaten thousands of fishing jobs, and leave the  
Bay-Delta estuary worse off than today," summed up Doug Obegi, a  
senior attorney with the Natural Resources Defense Council.

The issuing of the CDFW incidental take permit is just one of many  
actions taken in Jerry Brown’s campaign to plunder California’s fish,  
wildlife, people and environment to serve the greed of Big Ag and Big  
Oil since he began  his third term as Governor in January 2011.

Over just the past couple of months, the Brown administration has  
incurred the wrath of environmental justice advocates,  
conservationists and increasing numbers of Californians by:

Ramrodding Big Oil’s environmentally unjust cap-and-trade bill, AB  
398, through the legislature
Approving the reopening of the dangerous SoCalGas natural gas storage  
facility at Porter Ranch
Green-lighting the flawed EIS/EIR documents permitting the  
construction of the California WaterFix.
On February 6 of this year, twelve public interest groups, led by  
Consumer Watchdog and Food & Water Watch, unveiled a comprehensive  
"report card" on Jerry Brown Administration’s environmental record  
showing that he falls short in six out of seven key areas, including  
oil drilling, fossil fuel generated electricity, toxic emissions, the  
California Environmental Quality Act, coastal protection and water.  
Read the report “How Green Is Jerry Brown?” at: http://www.consumerwatchdog.org/isbrowngreen

CBD: Background on the California WaterFix

The proposed WaterFix diversion of Delta water would dramatically  
degrade habitat and water quality conditions for chinook salmon,  
longfin smelt and Delta smelt by decreasing flows into and through the  
Delta, placing already fragile and declining fish populations in  
serious jeopardy of extinction. All of these fish species are  
protected under the California Endangered Species Act.

The California Department of Fish and Wildlife cannot legally issue a  
permit to kill or “take” these protected species because operation of  
the tunnels would jeopardize the continued existence of the protected  
fish species.

Although the Act requires that any take of protected species must be  
minimized and fully mitigated, the Department failed to include  
mitigation measures that could successfully prevent these fish species  
from declining. The Department also violated the Act by failing to use  
the best available science on the impacts of the tunnels and  
associated water diversion.

Last week conservation groups challenged the legality of proposed  
bonds to pay for the construction of the tunnels project. Earlier this  
week Westlands Water District, the largest supplier of irrigation  
water to California farms, voted to not participate in the Delta  
tunnels project.

A court ruling against the bonds or rejection of the project by major  
water districts could be fatal to WaterFix because the project’s  
success hinges on funding commitments by the recipients of the project  
water. Public funds cannot legally be used to pay for the project.  
Conservation groups have also challenged the adequacy of the  
environmental review for WaterFix under California’s Environmental  
Quality Act.

In addition to driving endangered species toward extinction, the  
project would devastate Delta farmers, Sacramento Valley communities  
and what is left of California’s salmon fishing economy. In response,  
a large array of organizations, public agencies and municipalities  
have now filed multiple lawsuits challenging the project on a wide  
variety of legal grounds, including 21 conservation and fishing  
groups, 30 water agencies, and 12 counties and cities, as well as the  
Winnemem Wintu Tribe and Delta farmers.”


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