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Delta Pumping Process May Spur Lawsuit Group Threatens to Sue Over Delta Pumps

Posted on: Wednesday, 8 March 2006, 09:00 CST

By Mike Taugher, Contra Costa Times, Walnut Creek, Calif.

Mar. 8--California's largest water delivery system lacks the most basic permits required by the state's endangered species protection law, an association of anglers charged Tuesday in a formal lawsuit threat.

The notice of intent to sue the state Department of Water Resources comes as the population of one fish protected under the law, the Delta smelt, is severely depressed and other fish populations throughout the Delta also are plummeting.

At issue is whether the department's State Water Project, which delivers water from the Delta to more than 20 million people from Alameda County to Southern California, complies with the California Endangered Species Act.

"They have just fundamentally blown off CESA," said Bill Jennings, executive director of the California Sportfishing Protection Alliance, which filed the notice.

The threat is the latest sign that a decade of relative calm in California water policy could be giving way to a more bare-knuckled approach.

"I think those days (of cooperation) are over," Jennings said.

Environmentalists, anglers and others blame the state-owned pumps in Byron and smaller pumps owned by the federal government in Tracy for an ongoing decline among Delta fish species. The decline appears to have dramatically worsened in recent years.

Scientists are still trying to determine the cause but say the pumps could be a contributor.

The fact that the State Water Project has no permits or other formal documentation required by the state endangered species law was first determined last August by a state Senate committee.

The Senate Natural Resources and Water Committee's inquiry was prompted by a report in the Contra Costa Times that showed on two occasions last year that biologists were overruled when they recommended temporarily curtailing pumping to protect the smelt.

On Tuesday, DWR deputy director Jerry Johns said that although the State Water Project does not have formal state-issued permits, a series of other documents give it a "patchwork" of compliance.

"We think we are in compliance," Johns said. "We have a federal (document with a permit) and we meet once a week with biologists, including the state biologists, to make changes for Delta smelt."

The documents in that patchwork include a 1986 agreement designed to offset losses of striped bass, salmon and steelhead at the pumps and a 1995 amendment that Johns said expanded the earlier agreement to include Delta smelt and other fish species.

The documents do not make it clear that they are meant to serve as compliance for the state endangered species law.

Terry Erlewine, general manager of the State Water Contractors, which represents water agencies that take water from the project, also said those earlier documents mean the state water department is complying with the law.

Nevertheless, the Department of Water Resources and the Department of Fish and Game are attempting to develop a new species conservation plan authorized under the state law.

Although the State Water Project has similar permits from federal agencies, Jennings and lawyer Michael Lozeau said the state law is more stringent.

Jennings and Lozeau said this is because the federal law requires state water managers to simply develop reasonable alternatives that prevent jeopardizing the existence of fish species. The state law, they said, requires the state to fully "mitigate," or offset, the losses of fish.

"That means the species is not any worse off after the project than before," Lozeau said. "We're seeing this blatant violation by DWR because they don't want to hear what Fish and Game has to say about full mitigation. We think that will have very substantial (protections) for these fish."

Johns said the state law would require the department to fully offset the loss of fish only to the extent that it affects the overall population, he said. And, he said, it is difficult to tell whether the state pumps are affecting population levels.

The sportfishing organization's notice said that it intends to sue after 30 days, but added it is willing to discuss a way to settle the case first.

Mike Taugher covers natural resources. Reach him at 925-943-8257 or mtaugher@cctimes.com.

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Copyright (c) 2006, Contra Costa Times, Walnut Creek, Calif.

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Source: Contra Costa Times (Walnut Creek, Calif.)

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