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

The Freeport Bridge over the Sacramento River, known locally as “the gateway to the delta.” (Nick Cahill / CNS)

FRESNO, Calif. (CN) – Taking advantage of recently approved rules, the federal government is quickly following through on President Donald Trump’s promise to quiet environmentalists and “open up the water” to California farmers.

Less than two months after the president made a rare trip to California to sign the controversial package before an adoring crowd in House Minority Leader Kevin McCarthy’s district, the pumps supplying the federal government’s massive water project have been dialed up in recent days. The feds have gulped past previous limits, taking nearly three times the amount of water previously allowed even as another miserably dry rainy season wraps up in California.

The pumps in the south of the Sacramento-San Joaquin River Delta aren’t just whizzing during what will likely end up being classified a “critically dry” hydrological year, they are churning — and killing — endangered salmon during a critical migration period.

“We know that large portions of the juvenile cohorts are currently in the delta and in the danger zone for pumping operations,” said attorney Barbara Chisholm, representing Natural Resources Defense Council and a collection of fishing groups, argued in federal court Tuesday.

But after nearly two hours of oral argument, the environmentalists hoping to prevent juvenile Chinook salmon and steelhead from being vacuumed up on their journey to sea could not sway a federal judge to temporarily slow the feds’ pumping.

The plaintiffs asked U.S. District Judge Dale Drozd for a temporary restraining order requiring the Bureau of Reclamation to accept a “status quo” and commit to pumping limits established under the Obama administration. They claim the bureau agreed to conform to the old rules for April while the overarching lawsuit plays out in Fresno federal court but have reneged in recent days.

Drozd, appointed by President Barack Obama in 2015, pressed the Trump administration lawyers as to what triggered the additional pumping. He asked whether a pair of underlying declarations filed by the defendants’ expert were misleading.

“I can’t fully wrap my head around what is it that resulted in increased pumping on April 1 that was not anticipated five days earlier on March 26,” Drozd said of the declarations which anticipated “no meaningful changes in operations.”

Defending the decision to boost April pumping, U.S. Department of Justice lawyers argued the bureau was bound to take advantage of a recent stretch of wet weather in what has otherwise been a dry year. Besides, Justice Department lawyer Nicole Smith claimed, the number of fish entrained in the pumps in April is similar or below totals recorded under the nixed pumping limits and nowhere near the feds’ Endangered Species Act permit.  

“There is an allowable amount of take and even if we agree that right now is a high migration period for these species through the delta, even still salvage and loss rates have been incredibly low,” Smith said.

At issue are new rules governing how much water the bureau can take from the delta for its Central Valley Project during specific periods of the year. The federal government recently adopted new biological opinions and operating procedures for the project, one of the largest water conveyance operations in the county.

Consisting of over 20 dams and 500 miles of canals, the water project delivers an average of 7 million acre-feet annually to farmers and municipal customers.

Tuesday’s hearing is a relatively minor piece of the growing high-profile battle against the feds’ new delta scheme, but it featured the usual prominent players in California’s water world. California’s largest environmental groups and the state have teamed up to overturn the biological opinions, while water agencies whose main customers are Central Valley farmers have intervened on the feds’ behalf.

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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