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Water users file third suit on water cuts for smelt

Issue Date: March 18, 2009
Dave Kranz

A third lawsuit has been filed, challenging measures aimed to benefit the delta smelt. The Kern County Water Agency and water users represented by the group Coalition for a Sustainable Delta filed the suit last Friday in U.S. District Court in Fresno.

The suit mirrors two others filed previously by customers of the State Water Project and the federal Central Valley Project.

In each case, the lawsuits charge that federal agencies have ignored or overlooked scientific evidence that points to multiple causes for the decline in delta smelt populations. Instead, the lawsuits say, federal agencies have focused solely on the pumps that deliver water from the Sacramento-San Joaquin Delta to farms, homes and businesses in the San Joaquin Valley and Southern California.

Both the state and federal water projects have been required to reduce pumping to aid the delta smelt, which is protected as a threatened species under the federal Endangered Species Act and was classified as an endangered species this month under the state ESA.

Operation of the water projects' pumping plants must conform to restrictions described in a "biological opinion" written by the U.S. Fish and Wildlife Service. The biological opinion has been enmeshed in litigation for years. Environmental groups sued to overturn the original opinion, leading to a revised document that has now been challenged by water agencies.

In announcing their lawsuit, the Kern County Water Agency and the Coalition for a Sustainable Delta said federal agencies "continue to ignore scientific data that point to a growing list of other factors or 'stressors' that are impacting the Bay-Delta and the native fish that live there." They say federal agencies "have done nothing" to address predation by non-native fish, habitat destruction, discharges of wastewater and storm water, and other factors harming the smelt.

The groups said they may also sue federal agencies for failing to consult with the Fish and Wildlife Service when the other agencies took actions that might harm the smelt and other protected, native fish in the delta.

"The delta smelt face wide-ranging threats from contaminants to dredging activities," said Adrienne Mathews, president of the Kern County Water Agency board of directors. "We have no choice but to sue the federal regulators to get them to address these other factors. Californians cannot afford to have our economy further destroyed because federal regulators continue to ignore the real causes of the delta's decline and fail to coordinate their activities."

Coalition for a Sustainable Delta spokesman Michael Boccadoro said the actions by federal agencies have worsened a water crisis that has led to greatly reduced supplies for customers of both the federal and state water projects.

"Farmers are facing the loss of crops and fallowed fields. Additionally, tens of thousands of farm workers have lost their jobs because federal agencies have not done what they are required to do," Boccadoro said. "People are suffering because federal agencies are not doing their job and addressing the real issues."

On the same day the latest lawsuit was filed, attorneys gathered in a federal courtroom in Fresno for a hearing related to the earlier round of litigation regarding the delta smelt.

Chris Scheuring, managing counsel of the California Farm Bureau Federation Natural Resources and Environmental Division, said the hearing focused on whether the ruling overturning the earlier biological opinion might affect water contracts for CVP "settlement contractors" north of the delta. Scheuring said water users argued that those contractors hold water rights established before the CVP was built and therefore should not be affected.

U.S. District Court Judge Oliver Wanger made no immediate ruling on the issues raised at Friday's hearing.

(Dave Kranz is editor of Ag Alert. He may be contacted at

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

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