FRESNO, Calif. (CN) — In a long-running dispute over water rights in California, a federal judge will allow a pair of challenged Trump-era biological opinions to remain in effect over the next three years with added safeguards that some groups complain fail to ensure the survival of endangered fish.
In December 2021, a coalition of fishing industry and environmental groups asked a judge to temporarily block agencies from relying on two “scientifically unsound and fatally flawed” biological opinions issued during the Trump administration in 2019.
The two opinions — issued by the National Marine Fisheries Service and U.S. Fish and Wildlife — enable more water to be sent to some 20 million farms, businesses and homes in Southern and Central California via two massive federal and state water diversion projects. The opinions eliminate certain requirements, such as mandating extra flows to prevent water temperatures from rising to levels high enough to damage and fry salmon eggs.
Supporters of the Trump-era water and wildlife policies say the biological opinions will help 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 those endangered species assessments for the Central Valley Project and State Water Project will jeopardize the survival of threatened Chinook salmon, steelhead trout, delta smelt and longfin smelt.
“The 2019 [biological opinions] were designed, contrary to the requirements of the [Endangered Species Act], to ‘maximize water deliveries’ to water contractors even in drought, at the expense of pushing these protected fish species toward extinction,” attorneys for a coalition of environmental and fishing industry groups argued in a motion for a preliminary injunction.
On March 11, a federal judge in Fresno rejected the coalition's motion, finding an alternate proposal by state and federal agencies was more reasonable.
In a whopping 122-page opinion, U.S. District Judge Dale Drozd endorsed the governments' plan to keep the two challenged biological opinions in place while the Biden administration reconsiders them. While those reviews are pending, an interim operations plan will be put in place with provisions designed to provide extra protections for the endangered fish. Drozd found the government-backed interim plan “takes balanced and reasonable steps” to address water temperature-related threats to winter-run salmon eggs and sets “reasonable carryover storage goals” for Shasta Dam water.
The judge concluded the interim plan’s “middle-of-the road approach” on setting targets for water storage and temperatures was “more likely to be achievable” than what the coalition had proposed.
Members of the coalition that sought more stringent protections for endangered fish include the Pacific Coast Federation of Fishermen's Associations and Natural Resources Defense Council.
The judge also rejected opposition by certain water users and irrigation districts that said the interim plan would set up a potential conflict with senior contractors, whose water rights predate the existence of the Central Valley Project.
Claims that the interim plan will cause the U.S. Bureau of Reclamation to violate its contracts with senior water users is “purely hypothetical and speculative,” the judge wrote.
“The court is in no position to micromanage exactly how Reclamation intends to make good on its commitments under the [interim plan] while also abiding by its contractual obligations,” Drozd wrote, adding the contracts “make it exceedingly and increasingly difficult for Reclamation to operate Shasta Dam in a manner that is sufficiently protective of winter-run [salmon].”
Jon Rubin, general counsel for the Westlands Water District, which irrigates thousands of acres of agricultural land in California's Central Valley, said it's clear from the ruling that Judge Drozd spent significant time listening to and trying to understand each party's position.
"The order I think reflects the judge’s perspective that it was asked to deal with a very complicated matter from both the operational standpoint as well as the law," Rubin said.
Westlands did not join other irrigation districts and water user groups in opposing the state and federal government agencies' proposal for an interim operations plan.
Doug Obegi of the Natural Resources Defense Council declined to comment on the judge’s ruling, but his colleague Katie Poole, who heads the group’s water division, wrote in a blog post that even with extra safeguards in place, Governor Gavin Newsom and the Biden administration will need to step up to ensure the survival of endangered native fish in California.
“While the court adopted stronger temperature requirements than the Trump [biological opinions], the Court declined to order Reclamation to limit deliveries to the Sacramento River settlement contractors, although it acknowledged the threat they pose,” Poole wrote in the blog post.
In an emailed statement, California Natural Resources Agency spokesperson Lisa Lien-Mager said the state is satisfied with Drozd’s ruling.
“State agencies are pleased that a federal court has approved an interim operations plan for the Central Valley Project and the State Water Project through September 2022 to address severe drought while protecting species and ensuring water for human health and safety,” Lien-Mager said.
Drozd also granted a request to pause litigation through the end of September, finding results of the agencies' reviews of biologicals opinions will “likely change the administrative landscape of the case.”
Lien-Mager said California agencies support a litigation pause to give stakeholders more time to confer on a longer-term plan for balancing competing water needs for communities, the environment and the economy.
“Last week’s court order is a key step toward resolving differences, bolstering protections for species and managing through the challenges of a third year of drought,” she said.
Representatives for the U.S. Bureau of Reclamation, National Marine Fisheries Service and U.S. Fish and Wildlife Service did not return emails and phone calls requesting comment by press time.
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