Thursday, September 28, 2023
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Too Late to Fight Delta Rock Barrier

FRESNO, Calif. (CN) - A federal judge dismissed a lawsuit accusing California of damaging protected fish by completing an emergency drought project in the Sacramento-San Joaquin River Delta.

U.S. District Judge Lawrence O'Neill ruled the Federal Court does not have jurisdiction over a lawsuit brought by the Center for Environmental Science, Accuracy and Reliability, which claimed state and federal agencies violated the Endangered Species Act by building a 750-foot-wide rock barrier across a channel of the Delta in May.

CESAR claimed the barrier would harm protected fish and increase salinity in areas unprotected by the barrier and asked for a temporary restraining order in June. O'Neill struck CESAR's motion, ruling it moot as the rock barrier was already completed at the time of the filing.

On Monday O'Neill again ruled in favor of the California Department of Water Resources, finding CESAR did not comply with notice requirements of the Endangered Species Act. O'Neill agreed with the defendants that CESAR did not provide proper 60-day notice to the Department of Interior, as required by the Endangered Species Act.

CESAR claimed it provided adequate notice to the U.S. Fish and Wildlife Service.

O'Neill disagreed. "This Court finds that plaintiff's assertion that the FWS director is the proper authority to be noticed under Section 1540 is 'flatly contradicted by the language of the statue,' especially when considered in light of the considerable case law requiring strict compliance with this subsection," O'Neill ruled.

The environmental group initially filed suit in Sacramento Superior Court in May , a week before construction started on the rock barrier. CESAR claimed the barrier of "basketball-sized boulders" would increase salinity in the Delta and further damage the ecosystem of the watershed ravished by record drought.

While CESAR's federal lawsuit was dismissed Monday, its petition against the state resumes in October. It seeks writ of mandate alleging violations of the California Environmental Quality Act and the Endangered Species Act.

State officials say the temporary barrier will be removed in November and is needed to prevent saltwater from ruining freshwater that supplies 25 million people throughout California.

The $28 million construction is the first emergency drought barrier used by the Department of Water Resources in the Delta since 1976.

CESAR declined to comment on Monday's ruling.

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