Assemblyman Huffman Writes to DWR about State-Created CESA Violation

My colleague Kate Poole wrote here about the risk that, should it succeed in its efforts to invalidate current ESA protections in the Delta, the Department of Water Resources would put itself in violation of the California Endangered Species Act (CESA).  Yesterday, Assemblyman Huffman, chairman of the Assembly Water Parks and Wildlife Committee, sent DWR a letter chronicling the agency’s convoluted path toward compliance with CESA – and the risk that the state’s own legal strategy could result in a violation of state law.  He asks DWR to explain how it intends to meet the requirements of CESA, should the federal courts block either of the federal biological opinions that regulate the operations of the pumps in the Delta.  DWR’s reply should make interesting reading.

DWR received a temporary reprieve today, when Judge Wanger refused to block protections under the Fish and Wildlife Service delta smelt biological opinion.  As a result of this ruling, pumping limitations will remain in place under both the ESA and CESA. 

Over the last weekend, however, the SWP was clearly in violation of CESA limits, which reflect those in the federal BO.  The CESA requirements, which were not blocked by the federal court ruling last Friday, allow no more than -5,000 cfs flows in Old and Middle River.  For the layperson, that means that the average flows in these two Delta channels may not exceed 5,000 cubic-feet-per-second flowing in the wrong direction – carrying fish upstream toward the state and federal pumps.  As you can see here, the 14 day average reverse flows on February 7 and 8 exceeded this legal limit, as the CVP increased pumping in response to Judge Wanger’s ruling enjoining salmon protections.   

As Kate Poole points out here, this reckless approach to Delta protections is penny wise and pound foolish.