A U.S. appeals court in San Francisco today upheld a federal wildlife agency’s conclusion that massive water project diversions of water from the Sacramento-San Joaquin Delta endanger a small threatened fish species and should be curtailed.
The U.S. Circuit Court of Appeals ruled in a case concerning the Delta smelt, a 2- to 3-inch fish that is found only in the Delta and the upper San Francisco Bay and is listed as a threatened species under the U.S. Endangered Species Act.
The court by a 2-1 vote upheld a 2008 biological opinion in which the U.S. Fish and Wildlife Service said the fish was jeopardized by the diversion of water to central and southern California by the federal Central Valley Project and the State Water Project.
The two projects, which both operate major pumping stations near Tracy, supply water to more than 20 million Californians as well as to agricultural operations covering seven million acres, according to the court.
The biological opinion led to guidelines limiting water diversions.
A federal judge in Sacramento ruled in 2011 that the biological opinion was deficient and that the wildlife service must prepare a new one, but the judge kept the limits in place for the time being.
Today’s decision, unless successfully appealed, reinstates the biological opinion and also maintains the guidelines.
“We recognize the enormous practical implications of this decision,” wrote Circuit Judge Jay Bybee.
“As a court, however, we are limited in our review of matters within the expertise of an agency,” Bybee said in the majority opinion, which found that the wildlife service’s opinion was not arbitrary or capricious.
The decision was made in six consolidated lawsuits filed by water districts, water contractors and farm owners that challenged the biological opinion and the protections for the smelt. Several environmental groups were allowed to join the U.S. Interior Department in defending them.
Restrictions on water deliveries this year have resulted from the current drought and not from the smelt protection guidelines, the environmental groups said.
But in the 2012-13 water year, the guidelines reduced the projects’ water supplies by more than 800,000 acre-feet, enough to supply more than 1.8 million households or irrigate 320,000 acres, said Westlands Water District General Manager Thomas Birmingham.
Birmingham said the Fresno-based district is considering asking the appeals court to review the decision with an expanded 11-judge panel.
Damien Schiff, a lawyer with the Sacramento-based Pacific Legal Foundation who represented several farmers, said, “The 9th Circuit has done a reverse rain dance for California, practically guaranteeing that the impacts of our current drought will be more devastating.”
The conservation groups participating in the case said the smelt is an indicator of the overall health of the Delta and that the diversion limits will protect other species as well.
“Our efforts to improve flows through the Delta for the smelt have beneficial effects on the entire Delta ecosystem and the complex web of life it supports,” said Trent Orr, a lawyer with the Earthjustice law firm who represented the Natural Resources Defense Council and Bay Institute.
“Today’s decision will keep those flows in place and protect the delta,” Orr said.
Bay Institute biologist Jon Rosenfeld said, “Endangered fish populations are only a harbinger of the losses to California’s economy and quality of life that await us unless the state invests in sustainable water use policies now.”
Julia Cheever, Bay City News
