Feds Sued Over Risk to Smelt by Water Pumps

     SACRAMENTO (CN) – Government water pumps in California will kill more than twice as many Delta smelt as originally allowed this year, though populations of the endangered fish are already at an all-time low, groups say.
     In a Jan. 9 memo, the U.S. Bureau of Reclamation asked the Fish and Wildlife Service to increase the allowable incidental take of adult Delta smelt of 78 at the pumps, because the pumps already had killed 56 smelt and were approaching the limit.
     Facing a fourth consecutive year of drought, the Bureau of Reclamation said in the memo, it is “imperative” that the Central Valley Project and State Water Project pumping be allowed to continue “so that adequate water is moved into storage to meet health and safety needs this coming year.”
     Reaching the take limit of smelt in the Sacramento-San Joaquin Delta could put a stop to the pumping. The Bureau of Reclamation said in the memo that increasing the take limit would “have no additional adverse effects on Delta smelt or its critical habitat that were not previously analyzed.”
     The Fish and Wildlife Service approved the request and increased the interim incidental take limit of the 3-inch fish to 196 adult smelt for the 2015 water year – an increase of 151 percent.
     “If the early warning indicator of 78 adult Delta smelt is reached, Reclamation, working with state partners, should closely monitor environmental conditions and water operations to ensure entrainment events do not result in incidental take (expanded number) that exceeds 196 adult Delta smelt this year,” the Service said in its response memo, also dated Jan. 9.
     An annual fall survey of fish species conducted by the Fish and Wildlife Service found an all-time low number of Delta smelt. The survey found that the smelt’s abundance was highest in 1970 and has been consistently low since 2003, except in 2011.
     Fishery and water policy reform advocates are angry with the decision to allow more Delta smelt to be killed, arguing that the fish is a prime indicator species for the health of Northern California’s Bay/Delta system, the largest estuary on the West Coast of the continental United States.
     “As goes the Delta smelt, so goes the Delta. The crisis isn’t limited to the smelt,” said Bill Jennings, executive director of the California Sportfishing Protection Alliance.
     “All the Bay/Delta’s pelagic species are in trouble. The decision by the U.S. Fish and Wildlife Service to unilaterally approve the U.S. Bureau of Reclamation’s request to more than double the permissible killing of Delta smelt two days after the Service learned that population abundance of Delta smelt had collapsed to an historical new low is simply reprehensible.”
     Jennings called the decision a “back-room deal” that is “morally indefensible and legally questionable.”
     Pelagic fish live in the pelagic zone, neither near the bottom nor near the shore.
     Carolee Krieger, executive director of the California Water Impact Network, said that the only beneficiary of the decision is San Joaquin Valley agribusiness.
     “An increased Delta smelt kill translates directly as ongoing, excessive and subsidized water transfers to toxic San Joaquin Valley croplands owned by a handful of politically powerful corporate farmers,” Krieger said.
     Advocates for the Delta smelt recently won a victory when the Supreme Court turned down appeals by California water agencies and farmers to overturn Sacramento-San Joaquin River pumping limits that protect the fish.
     The farmers and water agencies challenged the U.S. Fish and Wildlife Service’s questioning whether limits on pumping water were required under the Endangered Species Act, arguing that the restrictions were particularly harmful to consumers and farmers during the drought.
     The 9th Circuit ruled in March 2014 that Congress had afforded the Delta smelt the highest protections under the Endangered Species Act, even if it may mean the sacrifice of millions of dollars in public funds spent on federal water projects.
     “The law prohibits us from making ‘such fine utilitarian calculations’ to balance the smelt’s interests against the interests of the citizens of California,” Judge Jay Bybee wrote in the 157-page opinion .
     The Supreme Court declined to hear the case this month, which had the effect of upholding the 9th Circuit ruling.
     The decision was “good news for the thousands of fishermen, Delta farmers, and everyone who depends on the health of California’s Bay-Delta estuary and its native fisheries and wildlife,” Kate Poole, litigation director of the Natural Resources Defense Council’s water program, said in a statement after the decision.
     Many called the ruling a major blow to farmers.
     “These regulations have harmed farmers and farm workers in the Central Valley, along with tens of millions of Southern Californians, by diverting vast quantities of water away from human use and out to the Pacific Ocean – all to try to improve the habitat of the Delta smelt, a 3-inch fish on the Endangered Species list,” said James Burling, director of litigation for the Pacific Legal Foundation.
     “As a result, hundreds of thousands of acres of once-productive farmland idled, farm workers have lost their jobs, and farmers are losing their farms. Water users in Southern California have seen their rates rise significantly. And the impacts of the state’s record-level drought have been much worse,” he said.

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