6/2/10: Down Swing on Seesaw for Salmon & Smelt

Last week, a federal court in Fresno reversed direction and put in question important new Endangered Species Act protections for Chinook salmon, delta smelt, and other imperilled fish species of the Bay-Delta estuary. At press time, export pumping had begun to increase as restrictions to protect salmonids were relaxed, and the court was considering similar relaxations to smelt protections.


In 2007, Judge Oliver Wanger of the U.S. Eastern District Court ruled in favor of the Bay Institute and other plaintiffs that federal protections for delta smelt were inadequate, and the following year he made the same finding in our challenge to federal protections for salmon and steelhead. A new biological opinion (BO) for smelt was issued by the U.S. Fish and Wildlife Service in late 2008, and for salmonids by the National Marine Fisheries Service in mid-2009.


But in shocking turnarounds for both BOs, in late May the same judge granted a request from export water users to set aside (for this year only) two of the specific pumping restrictions contained in the salmonid BO, and a few days later agreed to consider doing the same for a similar restriction on reverse flows in the smelt BO. Among the reasons cited by Judge Wanger was the lack of adequate scientific justification for these specific actions.


This reason is not supported by the facts. To the contrary, it ignores the overwhelming body of evidence supporting the protections in the BOs. A recent review of the BOs by a National Research Council panel convened at the behest of Senator Dianne Feinstein concluded that the flow requirements and export restrictions in the BOs were scientifically justified. And in three days of hearings in March before the State Water Resources Control Board, almost every expert on the Bay-Delta system, including The Bay Institute’s own Drs. Christina Swanson and Jonathan Rosenfield, testified to the overwhelming importance of improving flow conditions in order to adequately protect endangered species and the Bay-Delta ecosystem. (The sole holdouts were representatives of the export projects and their contractors).


Fortunately, the judge’s decision comes toward the end of this year’s period of protection for the listed species. Salmonid pumping restrictions end on June 15, and smelt protections at the end of the month. But with populations of these endangered species so low, even a few weeks of increased pumping could drive smelt and salmon closer to the edge. Let’s hope the judge who invalidated the old BOs for failing to protect these unique creatures of the Bay-Delta system doesn’t become known as the man who presided over their extinction.