Battle Over Delta Water Heads to Court

By Michael Doyle and John Ellis, The Fresno Bee, Calif.

Environmentalists have an ambitious new plan to protect the tiny delta smelt, but it will require time, money — and well over 1 million acre-feet of water that Central Valley farmers say they can’t afford to lose.

On Tuesday, lawyers and scientists representing both sides will go before a federal judge in Fresno with a fight over how to preserve a slender-bodied fish that casts an outsized political shadow.

"The time for timid, tentative actions to protect the smelt and other declining species is past," Peter Moyle, a biologist at the University of California at Davis, said in a legal filing.

The plan — detailed in recent court filings — calls for less water to be pumped out of the delta to keep the fish healthy.

In reply, farmers’ attorneys warn of "devastating impacts for agriculture." Water contractors say that if California suffers another dry year, growers on the San Joaquin Valley’s west side could lose all federal irrigation water.

"This will result in significant hardship, not only on the landowner but on the local communities and economies that are highly dependent on local agricultural activities for jobs, service and supplies," Del Puerto Water District general manager William Harrison wrote.

At issue is water pumped from the Sacramento-San Joaquin Delta south to serve cities and farms in the San Joaquin Valley and beyond. The pumps can kill the smelt.

State authorities in May took the unprecedented step of shutting down huge water pumps for 10 days in the south delta after they found that rising numbers of the rare fish had been sucked to their death.

Now, everyone is scrambling to find a long-term remedy to protect the fish and avoid another pump shutdown.

The Del Puerto district irrigates 45,000 acres of farmland on the west side of Merced, San Joaquin and Stanislaus counties.

Like the much larger Westlands Water District in Fresno and Kings counties, Del Puerto now has its fate tied to the smelt and a 2005 lawsuit by the Natural Resources Defense Council.

Once, the smelt was the most common fish in the Sacramento-San Joaquin Delta.

Now, it is listed as threatened under the Endangered Species Act. Described in one legal filing as "small, fragile and poor swimmers," the smelt have lost their habitat, been sucked into pumps and become trapped in fish screens.

Since June, despite the fish’s protected status, environmentalists report that about 1,605 delta smelt were killed by state and federal pumps.

"The delta smelt cannot sustain further losses like this if it is to survive," Natural Resources Defense Council attorneys declared.

But Dan Nelson, executive director of the San Luis & Delta-Mendota Water Authority, said, "The tragedy and outrage is that the proposal submitted by environmental groups ignores 95% of the causes for a declining fish population in the delta."

Nelson said scientists have concluded that other factors — such as loss of food supplies and the introduction of foreign plant and fish species — have altered the environment, which in turn has had a greater effect on the smelt.

Reducing water diversions to the Central Valley and the Bay Area will bring no long-term benefits to the smelt, he said.

As part of the lawsuit, the environmentalists have proposed a sweeping plan that will be the subject of Tuesday’s hearing before U.S. District Judge Oliver W. Wanger.

Already, the plan and its potential consequences have spurred voluminous court filings that underscore the gap separating environmentalists from farmers.

They can’t agree on the most fundamental facts.

Environmentalists say their smelt-protection plan would require 1.5 million acre-feet of water, or about 9% of the average deliveries over the past several decades.

Farmers insist the plan would need as much as 3 million acre-feet.

Environmentalists say the delta smelt is "near extinction." Farmers cite estimates from government scientists that there are more than 1 million delta smelt still alive.

Environmentalists say farmers can readily ease the conservation burden by switching to different crops and installing more efficient irrigation systems.

Economists hired by farmers say agricultural losses could range from $111 million to $484 million next year under the environmentalists’ plan.

"At certain times of the year, the west side is growing 90% of some of the different types of produce available in the U.S.," Nelson said.

"It is incredible what is being proposed here."

In any event, environmentalists argue, the cost of saving the smelt doesn’t matter as much as the legal obligation to protect the species.

The environmentalists’ 10-point plan covers several areas:

Monitoring. For example, officials would check for smelt four times a day — "evenly spaced in time during both the day and night" — at state and federal water facilities to track the smelt population.

Managing water flow. Officials, for instance, would maintain water flowing through the delta at minimum levels during the fall. This would help keep the habitat from getting too salty.

Managing irrigation contracts. Environmentalists want dozens of long-term contracts in the Sacramento and San Joaquin valleys between irrigation districts and the federal government rescinded and replaced with one-year contracts to allow terms to be negotiated.

"The Bureau [of Reclamation] executed the long-term water contract renewals based on the … faulty conclusion that the water deliveries would not jeopardize the delta smelt," the Natural Resources Defense Council attorneys argued.

Westlands Water District deputy general manager James Snow wrote that "deliveries to south-of-Delta agricultural contractors would be reduced to zero" under the environmentalist plan. Westlands farmers say this, in turn, would cause more ground-water pumping, widespread fallowing of land and the potential loss of permanent crops.

"Here we are in the place where the debate is showing other factors affecting the decline of the delta smelt," Nelson said, "and yet the only thing on the table is curtailing the water deliveries."

Michael Doyle reported from Washington, and John Ellis reported from Fresno. The reporters can be reached at mdoyle@mcclatchydc.com or (202) 383-0006, or at jellis @fresnobee.com or (559)44