Judge Denies Bid to Close Gates on Federal Water Grab in California Delta

The latest water dispute dates to July 2019, when the Trump administration raised alarm bells by stashing a 1,100-page biological opinion that warned additional delta pumping could harm endangered salmon, steelhead and Southern Resident killer whales. Instead of adopting the opinion, the document was pulled two days after publication and a drastically different, more farmer-friendly version emerged three months later.

Critics said the new opinion — which reversed the initial version by concluding more delta water could be pumped without harming endangered species — smacked of political influence and was crafted by bureaucrats and not scientists. 

Opponents including Natural Resources Defense Council, Defenders of Wildlife and Golden State Salmon Association responded less than two months later with the lawsuit at the heart of Tuesday’s oral argument.

Not to be left out, California also sued to stop the attempt to pump more water out of the delta for agricultural usage. State officials accused the Trump administration of manipulating and ignoring scientific data and warned they wouldn’t “silently spectate” as the federal government increased its share of California’s already overburdened water supply.

As is often the case, the delta is once again the focus of California’s interminable water wars.

The drainage point of California’s largest rivers, the delta is the largest remaining estuary on the West Coast and the state’s most important water source. Stretching across 1,100 square miles and five counties, the delta is the hub of massive federal and state water projects which prop the state’s $50 billion agricultural industry and provide drinking water for over 25 million people.

Drozd’s denial of the temporary restraining order means the feds’ window to pump at higher levels will close April 10 when state law reverts to limits established before the Trump administration. In essence, the plaintiffs were fighting for relief that would have ultimately lasted less than 72 hours.

The small window on its surface appears shallow, but both sides argued vociferously for it while appearing telephonically Tuesday.

The plaintiffs told Drozd limiting the pumps early will improve the chances of survival for the juvenile fish as they leave the delta for the San Francisco Bay and the Pacific Ocean. By potentially preventing fish kills, the court could help aid the ongoing recovery of two revered salmon species on the brink of extinction.

Chisholm drove her irreparable harm claims by highlighting the deadly impact the pumps have on juvenile fish. According to the plaintiffs’ briefs, nearly 300 Chinook and 396 Central Valley steelhead have been killed this water year.

“Once the fish have been killed, they’ve been killed,” Chisholm said. “It’s appropriate for this court to enter a short-term TRO to reduce pumping for the remainder of this week until the state water board’s decision comes into effect.”

But if the relief is granted, the feds and the intervening water agencies said they would be missing out on a golden opportunity to recoup supplies in wake of an impressive storm that doused much of the state this past weekend.

An attorney for the largest agricultural water supplier in the nation said the loss would equal about 5,000 acre-feet per day. One acre-foot is the amount of water it takes to cover an acre of land with a foot of water, or roughly 326,000 gallons. 

“In a dry year like this year, that’s a lot of water,” said Daniel O’Hanlon, lawyer for Westlands Water District and the San Luis & Delta-Mendota Water Authority.

Drozd signaled several times during oral arguments that the environmentalists’ irreparable harm argument was tepid at best.

“Plaintiffs seem to imply in their papers any harm to any single member of a listed species might be sufficient. That doesn’t seem to be consistent with my interpretation of the law in this area,” Drozd said. “Obviously some fish are being lost because that’s always been the case.”

Less than eight hours later after oral arguments ended, Drozd dashed the plaintiffs’ request for “extraordinary remedy” in a 12-page ruling.

“However, here plaintiffs appear to be advocating application of an irreparable harm analysis that is largely untethered from any sense of the magnitude of that impact to the overall population of that species,” Drozd wrote.

The ruling wasn’t entirely bad news for the environmentalists going forward, as the Los Angeles native acknowledged the plaintiffs “certainly raised serious questions” about the feds’ flip-flop on the biological opinions. Drozd said he hopes to have a full record on the matter by the time the parties complete their briefs on the outstanding motion for preliminary injunction.

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