Court finds harm to salmon, sets remedies hearings


Issue Date: July 23, 2008
Kate Campbell

A federal district court decision in Fresno last week means more legal wrangling over water for endangered salmon and steelhead runs on the Sacramento and American rivers. And it means continued uncertainty for California farmers and ranchers who depend on water delivered through state and federal water projects.

The court's 118-page ruling is the result of a lawsuit filed by the Natural Resources Defense Council and several other environmental groups, including the Pacific Coast Federation of Fishermen's Associations. These groups have accused the government of not providing adequate protections for endangered salmon and steelhead.

Federal District Court Judge Oliver Wanger said in his decision that "based on two drought years, with critically dry hydrologic conditions in 2008, and the presently unpredictable risk of a third dry year, the species are unquestionably in jeopardy. The ESA does not permit jeopardy to a listed species to be considerably increased during the BiOp (biological opinion) reconsultation."

"We are disappointed in the court's decision on behalf of our Farm Bureau members," said Chris Scheuring, California Farm Bureau Federation managing counsel. "We were of the opinion the government's operation of the water projects was calculated for the reasonable protection of the listed species. Judge Wanger took a different view and we respect that.

"In combination with last year's delta smelt rulings, the only reasonable conclusion to draw is that if we're going to have a species protection statute as demanding and inflexible as the Endangered Species Act, we're also going to have to get more water storage into the state's water delivery system. Without that we face the prospect of consistent water shortfalls, which will be disastrous not only for agriculture, but for the 37 million people who live in California and depend on reliable water supplies," Scheuring added.

CFBF has intervened in this case on behalf of state and federal water project operators, along with a number of agricultural and urban water districts.

Wanger ruled in April that federal agencies failed to properly consider the effects of water delivery systems on endangered species and had not calculated the impact of other environmental stresses.

That decision invalidated the biological opinion underpinning the operations of the projects, which essentially said that salmon and steelhead species would not be adversely affected by pumping water from the Sacramento-San Joaquin Delta and other water management actions in the system. Now millions of acres of irrigated crops and the water supply for about 25 million California residents are at risk.

The trial has been divided into several parts—first the court found in April that the biological opinion related to Central Valley Project operations and issued by the U.S. Fish and Wildlife Service was inadequate. Next the court determined current operations pose a threat to the fish.

A new biological opinion, which will be used to guide project operations on the Sacramento River, is expected to be final in March 2009. The next phase of the trial getting under way this week will address proposed interim remedies—what changes in operations are needed to protect the fish between now and March 2009.

In its decision to continue to the interim remedies phase, the court noted that all expert witnesses have testified that the three salmonid species of concern in this case are listed as threatened or endangered under the Endangered Species Act. The court determined they are not viable and all are in jeopardy of extinction.

"The importance of this ruling on the water projects and their impact on winter and spring salmon runs and those of steelhead trout is not confined to the Sacramento-San Joaquin River Delta," Scheuring said. "It really extends to the entire state and our current system of water conveyance. This federal court decision is continuing evidence that our current water infrastructure may be incompatible with the ESA.

"The only way to fix this problem is to build flexibility through increased supply. We must have more water or all of California is in for a very tough future."

California's water crisis

Judge Wanger's decision will have a broad statewide impact on California. Here is a snapshot of a few of the counties that will be impacted and the top five crops that each county produces:

Fresno—Grapes, almonds, tomatoes, poultry, cattle and calves
Kern—Almonds, grapes, milk, carrots, citrus
Kings—Milk, cotton, cattle and calves, alfalfa, almonds
Madera—Almonds, milk, pistachios, winegrapes, raisin grapes
Merced—Milk, chickens, almonds, cattle and calves, tomatoes
San Joaquin—Milk, grapes, tomatoes, almonds, walnuts
Stanislaus—Milk, almonds, cattle and calves, chickens, walnuts
Tulare—Milk, oranges, cattle and calves, grapes, alfalfa

Source: California Department of Food and Agriculture, 2006 figures

(Kate Campbell is a reporter for Ag Alert. She may be contacted at kcampbell@cfbf.com.)

Permission for use is granted, however, credit must be made to the California Farm Bureau Federation when reprinting this item.