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Tuesday, July 23, 2024 | Back issues
Courthouse News Service Courthouse News Service

Delta Smelt Spawn|a Swarm of Lawsuits

SACRAMENTO (CN) - Environmentalists continue to fight against a dismantled dam built across a channel of the Sacramento-San Joaquin River Delta in response to the drought.

The Center for Environmental Science, Accuracy and Reliability (CESAR) sued the state and federal governments Thursday in Federal Court, claiming California circumvented environmental law to build the 750-foot-wide rock barrier. The group wants to be sure that another dam will not be built in defiance of environmental regulations.

Eight lawsuits have been filed this year alleging harm to Delta smelt.

The barrier at issue was built in May as a temporary fix to prevent additional saltwater from fouling freshwater supplies to approximately 25 million people, according to the state Department of Water Resources, the lead defendant.

"The barrier worked by preventing salinity to reach the central Delta," Paul Marshall, chief of the department's Bay-Delta office, said in a statement. "We were able to save about 90,000 acre-feet in upstream reservoirs for the last quarter of 2015 and for fish releases."

An acre-foot is enough water to cover an acre one foot deep. It is roughly the amount of water a typical suburban household will use in a year.

The state announced on Nov. 16 that the barrier had been removed.

The rubble will be stored for possible later use if an emergency drought barrier is needed down the line to preserve water quality, the state said.

CESAR claims that the installation, operation and removal of the barrier violated the Endangered Species Act because it resulted in the killing - or "take" - of the endangered Delta smelt.

Leah Zabel, attorney for CESAR, said the state put up the barrier without a required incidental take permit from the co-defendant U.S. Fish and Wildlife Service.

Because the barrier changed salinity levels and water flow through the Delta - which are conditions necessary for the survival of the smelt - the state was required to do a consultation on the 2008 Biological Opinion of the Coordinated Operations of the Central Valley Project and State Water Project before building the barrier, Zabel said.

"The Biological Opinion specifically says 'we may put up the barriers, but we will consult before we do that,' and that obviously didn't take place," Zabel told Courthouse News.

Although this barrier has been removed, the group is concerned that more dams may be built.

"What we understand is that they basically intend to install barriers without a consultation, as they did here. It appears they will continue to use this as a drought control measure," Zabel said.

CESAR filed a similar lawsuit in May, which was thrown out in September. U.S. District Judge Lawrence O'Neill found that CESAR did not comply with notice requirements of the Endangered Species Act.

"That was a procedural ruling," Zabel said. She said Judge O'Neill did not rule on the substantive issue of whether take of the smelt occurred due to the salinity barrier.

In its new complaint, CESAR seeks declaratory judgment that the government violated the Endangered Species Act by taking Delta smelt through the adverse modification of its critical habitat and by failing to complete a formal consultation. It also wants an injunction preventing construction and operation of more salinity barriers that violate the Endangered Species Act.

CESAR has another lawsuit pending in Sacramento Superior Court , seeking writ of mandate alleging violations of the California Environmental Quality Act and the Endangered Species Act.

The state did not respond to a request for comment sent by email Friday afternoon.

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