California will be allowed to proceed with state water plans after a federal judge ruled two Trump-era biological opinions may remain in effect over the next three years—with new safeguards for endangered fish.
Fishing and environmental groups argued that 2019 opinions for California’s Central Valley Project and State Water Project would jeopardize endangered fish species, while supporters appreciated the elimination of certain requirements regarding water flows. U.S. District Judge Dale Drozd ruled March 11 that the biological opinions would remain in place while the Biden administration reconsiders them.
The Trump-era opinions allow water to be sent to about 20 million farms, businesses and homes in southern and central California. The opinions removed certain requirements, such as mandating extra flows to prevent water temperatures from increasing high enough to damage salmon species. Critics argue removing the mandates endangers Chinook salmon, steelhead trout, delta smelt and longfin smelt.
Background
In 2019, the National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (USFWS) issued a pair of biological opinions addressing the impact on endangered species from the long-term operation of the Central Valley Project and the State Water Project. USFWS’ opinion addressed the water projects’ impact on the delta smelt, and the NMFS opinion addressed impacts on various other aquatic species.
A coalition of fishing industry and environmental groups—including the Pacific Coast Federation of Fishermen’s Associations and Natural Resources Defense Council—argued the opinions violated the Administrative Procedure Act, National Environmental Policy Act and California Endangered Species Act, and they filed suit in 2020.
In his recent opinion, Drozd noted that thousands of pages of briefs and supporting documents had been submitted regarding the case. “Put simply, the dozens of lawyers involved in this case have drowned the court in paper,” he wrote. “It cannot be understated that it would be impossible for the court to address every argument raised in the papers or at the hearing on the motions in a remotely timely fashion.”
While the Biden administration reconsiders the opinions, an interim plan will be put in place with added provisions to protect endangered fish species through the remainder of the water year, ending Sept. 30. Drozd also ruled to stay additional litigation through September, as the Biden administration’s review will likely impact the future of the case.
Plan details
The proposed plan recognizes California is in an ongoing drought, and winter-run Chinook have experienced poor egg-to-fry survival rates. In order to protect the species, the interim plan will adjust water temperature hours and determine an end-of-September carryover storage goal for the Shasta Reservoir.
In addition, the Bureau of Reclamation will not schedule or make deliveries of stored water for any reason other than for public health and safety until the agency approves a temperature management plan to meet the winter-run habitat criteria and September storage goals.
The plan also creates a new Shasta planning group to coordinate decision-making related to temperature control issues and develop a monitoring and tracking system.
For steelhead trout and winter-run salmon, the interim plan is similar to the NMFS’ 2019 biological opinion, but it requires that pumping reductions, if triggered, would have to remain in place for at least 14 days before exports could be increased—even if a risk assessment determined the risk was no longer present.
Regarding the delta smelt, the interim plan limits exports to protect larval and juvenile smelt if needed and to reduce negative water flows depending on the level of risk.
The fishing and environmental groups argued for a stricter interim plan, but Drozd ruled the government-backed interim plan was sufficient and reasonable.
Some water rights holders argued the interim plan would impact their water rights, but Drozd said, “Even though Reclamation operates Shasta Dam, Reclamation does not have management discretion over all water that is released from Shasta Reservoir. Reclamation is, for example, contractually obligated to deliver water to certain entities that hold water rights that are senior to (i.e., higher priority than) the rights Reclamation relies upon in operating the (Central Valley Project).”
In response to Drozd’s ruling to keep the biological opinions in place, Kate Poole, Natural Resources Defense Council senior director of the water division, said the ruling would drive the fish species into a “death spiral from which they may never recover.”
“It’s time for the Biden administration to acknowledge that these biological opinions are highly illegal and wildly destructive, and to impose adequate protections during the three years that it will take to write new biological opinions,” Poole wrote.
She concluded that while the coalition of fishing and conservation groups had sought stronger protections, “The court deferred to the state and federal agencies to do their job and protect listed species. We must now hold them to it.” — Anna Miller, WLJ managing editor
