State Legal Strategy in the Delta Conflicts with State Legal Requirements

Yesterday, a federal judge refused the Department of Water Resources’ “nonopposition” to a request to block ESA protections for the delta smelt under the Endangered Species Act.  The court, however, has not yet ruled on the request to weaken protections for listed salmon and other species.  The state’s position in this case is in conflict with two important legal requirements.

The first conflict is with SB 7x1 -- the Delta governance bill passed in November.  That bill requires the state’s Bay-Delta Conservation Plan to meet the requirements of the Natural Communities Conservation Planning Act – the state’s highest standard for ecosystem restoration and species recovery -- which requires the development of a science based program to protect and restore listed species. 

The problem is that the best available science on Delta fish has already been used to develop the biological opinions to protect listed Delta species.  The Fish and Wildlife Service and the National Marine Fisheries Service took great care to ensure that these BOs were grounded in solid science – through at least five separate scientific peer reviews.  So although the state is required to use the best available science to develop a BDCP, DWR is currently challenging the federal BO’s based on that same science. 

The second conflict is with the state’s salmon doubling requirement, which was established twenty years ago in Section 6902 of the Fish and Game Code and subsequently incorporated into the State Water Resources Control Board’s Water Right Decision D 1641.  Since the passage of this requirement, rather than doubling salmon populations, state agencies have watched populations plummet to record lows.  In fact, the State Water Project has played a significant role in this decline in the Central Valley. 

The protections that DWR has asked the court to block are designed to protect listed salmon, such as winter-run and spring-run Chinook.  But these protections also benefit the fall-run – the backbone of California’s and Oregon’s salmon fishery.  So, in addition to seeking to relax protections for listed species, the state is seeking to weaken protections for the salmon upon which the salmon fishing community depends.  Rather than seeking to restore salmon populations, as required by law, DWR is seeking permission to facilitate its further collapse. 

The recreational and commercial salmon fishing community is well aware of the implications of the state’s legal strategy.  Here’s a press release from the Pacific Coast Federation of Fishermen’s Communities discussing the implications of the court hearing. 

The potential implications of the state’s legal strategy don’t stop here.  My colleague Kate Poole writes here about potentially serious implications for water users.