1/5/11: Bay-Delta Gets Coal in Stocking for Christmas

Bay-Delta Gets Coal in Stocking for Christmas
Efforts to throw out protections make inroads in court and planning efforts

Christmas was not a good holiday for the endangered species and habitats of the San Francisco Bay-Delta estuary, as efforts by water districts and the Schwarzenegger Administration to undermine existing protections and export more water from the Delta gained traction in two separate initiatives.
 
On December 14, a federal judge in Fresno ruled that some specific levels of restriction on export pumping in the biological opinion for delta smelt were invalid, forcing the U.S. Fish and Wildlife Service to rewrite the regulations for the second time in recent years. In 2007, the same judge threw out the previous biological opinion – which sets the conditions under which the giant state and federal water projects in the south Delta can operate without causing jeopardy to delta smelt – after The Bay Institute and other conservation groups proved that the Endangered Species Act permit failed to protect the species and ignored basic scientific information about the fish’s needs and the causes of its decline.
 
In the December ruling, Judge Oliver Wanger of the U.S. Eastern District Court continued to find that restricting export pumping to avoid jeopardy to the smelt was scientifically justified but decided that some of the specific levels of pumping restriction in the biological opinion were not justified. (The restrictions will remain in place until the completion of a remedy phase in early 2011). The judge’s ruling is not only unfortunate but unnecessary. While there is uncertainty over the exact level of pumping that would best protect delta smelt, the Fish and Wildlife Service used the best available scientific information to develop the pumping restrictions contained in the 2008 opinion. There is no credible new information supporting a less restrictive set of pumping requirements, and every indication that implementing the current protections has prevented the delta smelt from going extinct in the last two years. A key unknown is whether the Brown Administration will continue to support the water user challenge to the biological opinions for smelt and salmonids that Governor Schwarzenegger pursued so vigorously.
 
The very next day, the state and federal governments released separate status reports on the Bay-Delta Conservation Plan, the joint effort to develop a new, long-term permit for water project operations under the Endangered Species Act and other laws. The federal report was much more cautious and nuanced in its language than the state version, but in a press conference in Washington, D.C., both federal and state officials endorsed the draft Plan’s proposed construction of a new canal or set of tunnels to export water around the Delta and stated that the BDCP analysis showed that more water could be delivered to San Joaquin Valley and Southern California water districts with a canal or tunnels than under the current system. The release of the BDCP reports was widely seen as an attempt by Governor Schwarzenegger to preserve his water legacy and limit the choices of incoming Governor Brown.
 
But a number of critiques by The Bay Institute, independent scientific reviewers, and other parties have conclusively shown that the BDCP analysis is grossly inadequate. That analysis overlooks the overwhelming scientific evidence that more freshwater flow to the Delta and San Francisco Bay is needed to restore the estuary ecosystem, fails to identify targets for species recovery against which the Plan’s efficacy can be measured, and omits any consideration of actions to reduce export water use or secure alternative supplies in conjunction with improvements to Delta conveyance. Ironically, only a week before the release of the reports, a National Academy of Sciences expert panel reviewing environmental protections in the Delta held a public workshop to evaluate the status of the BDCP. The panel members were highly critical of the Plan’s shortcomings, with one scientist describing it as having “no depth”.
 
Christmas indulgences are usually followed by New Year’s Day resolutions. Our suggestion to state and federal decision-makers is to resolve this year to start letting the science be heard in the debates over how to solve the problems of the Bay-Delta.