Judge extends plan to manage flows to California delta and protect endangered fish

FRESNO, Calif. (CN) — A judge has extended a temporary settlement of a long-running dispute over California water rights and how the Central Valley Project and State Water Project manage the Sacramento River flows.

Conservationists and the state of California filed two challenges to two biological opinions issued by the National Marine Fisheries Service and the U.S. Fish and Wildlife Service in 2019 pursuant to the Endangered Species Act. The opinions address how the U.S. Bureau of Reclamation and California Department of Water Resources’ plan for operating the Central Valley and State Water Projects affects fish species. The opinions make it possible to send more water to 20 million farms, businesses and homes in Southern and Central California via the massive federal and state water diversion projects, and eliminate requirements such as mandating extra flows to keep water temperatures from rising high enough to damage salmon eggs. 

Supporters of the Trump-era water and wildlife policies say the biological opinions helped provide needed irrigation water to help family farms and ranches thrive, employ workers and keep California's $50 billion-per-year agricultural industry afloat. Opponents say the endangered species assessments jeopardize the survival of threatened Chinook salmon, steelhead trout, delta smelt and longfin smelt.

Before construction of Shasta Dam, the winter-run Chinook had access to the Sacramento River and to upper rivers where springs provided cold water. Winter-run adults migrate upstream through the San Francisco Bay-Delta region during the winter and spring months, and spawn in the upper Sacramento River in the summer months. Reclamation releases water stored in reservoirs in Northern California which flows down the Sacramento River to the Sacramento-San Joaquin River Delta, and pumping plants divert that water to users south of the delta. The water projects have undergone numerous rounds of review, resulting in the disputed opinions imposing regulatory constraints upon operations. 

Plaintiffs in both cases claim the feds violated the Administrative Procedure Act by concluding that the water projects would not jeopardize the existence of the species listed as endangered. They also say Reclamation failed to comply with the California Endangered Species Act.

A federal judge approved plans to allow the biological opinions to remain in effect over the next three years with added safeguards. In a 122-page order issued in March 2022, U.S. District Judge Dale Drozd in the Eastern District of California granted the motion for voluntary remand without vacatur of the challenged opinions, approved a stipulated interim injunctive relief package, denied competing relief requests and stayed the case through Sept. 30, 2022. 

U.S. District Judge Jennifer Thurston was asked to consider federal defendants and plaintiffs' request to extend the interim operation plan as injunctive relief, with some modifications, through Dec. 31, 2023. In approving the request, the Joe Biden appointee said in a sprawling 80-page order that the 2023 interim plan continues provisions in the 2022 plan that enhanced or strengthened “loss thresholds” to protect salmonids migrating through the delta.

She said the parties “took what can only be described as a ‘throw every standard at the wall and see what sticks’ approach to briefing the appropriate standard(s) of decision applicable to the various injunctive relief proposal.” 

“This time around, there is no suggestion that the postures of the federal defendants and state plaintiffs have changed; they remain adversarial,” Thurston added. 

Thurston said the feds presented relatively limited factual evidence for the performance of the 2022 plan’s provisions. She said “mysteries and uncertainties” around managing the ecosystems “complicate the ability of any party to intelligently move the ball forward” and are “making it difficult for the court to properly perform its constitutional role in these proceedings.”

“No one — not water project managers, not any other party, and not even the scientific community — can satisfactorily explain why winter-run mortality was so high in the Upper Sacramento River in 2022,” Thurston said. 

“The opposing parties claim to be able to put their finger on one or more reasons for this situation, but, as has been the case throughout this litigation, their presentations pull in opposite directions, with one side claiming more stringent temperature controls are needed, and the other side claiming that the single-minded focus on temperatures did not and will not work because it ignores other important factors. Neither side has presented particularly compelling arguments in support of their position.”

The judge said the 2023 interim operating plan represents “a temporary settlement of a highly complex lawsuit,” saying no court is positioned to “determine how these highly complex water projects should be managed on an interim basis.”

Thurston noted January’s atmospheric river storms have improved the state’s water supply outlook, but it is uncertain how much the Sacramento Valley will recover — although the chance of a dry year being declared in the watershed is estimated to be less than 25%. The 2023 interim plan says that if the water year is classified as “below normal,” there are procedures required to provide cold water conditions for winter-run Chinook salmon egg incubation. Reclamation will set carryover storage volume goals according to water year type, and if it cannot meet temperature habitat criteria for critical years, then the Shasta Planning Group will “agree on temperature management that provides sufficient habitat for the longest period possible.”

Thurston disputed those saying the 2022 plan did more harm than good, and that its temperature and carryover storage targets may have made conditions worse for winter-run salmon. She agreed low river flows can hurt salmon incubation success and affect how juveniles migrate. But she said no one had strong reasons for why winter-run survival was so poor in 2022, and that plan represents the most reasonable approach, albeit an imperfect one, to protecting the winter-run given the available information.”

The judge also granted a stay of all proceedings through Dec. 31, 2023, to allow the federal defendants to finish revising the disputed biological opinions by 2024. The parties are supposed to communicate throughout 2023 and file a joint status report at least 45 days before Dec. 31. Thurston is considering requiring the appointment of a special master to oversee review of future requests for interim injunctive relief.

Representatives for the U.S. Bureau of Reclamation, National Marine Fisheries Service and U.S. Fish and Wildlife Service and attorneys for the plaintiffs did not return emails and phone calls requesting comments by press time. But plaintiff Pacific Coast Federation of Fishermen's Associations blasted the ruling.

"Unfortunately, the court kept to the current status quo in extending the Interim Operations Plan," the group's regional director Glen Spain said. "But that plan is going to lead to widespread salmon extinctions if it does not change course soon.

"Major salmon season closures this year are now inevitable, devastating what was once a billion dollars salmon fishery, and the cause is all too clear 0151 too much water has been handed out to irrigation interests for the past several years, with never enough water left in the river for salmon. The salmon need more water now! Fish swim in water, not in politics and promises."

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