Fish and conservation groups sue over Delta Tunnels project

By Dan Bacher | July 3, 2017 |  

Fishing and environmental groups on June 29 filed two lawsuits challenging the Trump administration's biological opinions permitting the construction of the controversial Delta Tunnels that were released Monday.

This litigation is the first of many that are expected to be filed against the biological opinions and the project in the intensifying water wars.

Four groups — the Golden Gate Salmon Association (GGSA), the Natural Resources Defense Council (NRDC), Defenders of Wildlife, and the Bay Institute — charged the U.S. Fish and Wildlife Service and National Marine Fisheries Service for violating the Endangered Species (ESA) a landmark federal law that projects endangered salmon, steelhead, Delta and longfin smelt and other fish species. The lawsuits said the biological opinions are “arbitrary, capricious, an abuse of discretion."

On Monday, the Donald Trump administration released a no-jeopardy finding in their biological opinions regarding the construction of the Delta Tunnels, claiming that the California WaterFix "will not jeopardize threatened or endangered species or adversely modify their critical habitat." The biological opinions are available here: 

Showing the growing collaboration between the Brown and Trump administrations on water and other environmental issues, Michelle Banonis, Assistant Chief Deputy Director at the California Department of Water Resources, stated, “On behalf of the California Department of Water Resources, I would like to thank the US FWS and the NMFS for their significant efforts in putting together the biological opinion for California Water Fix. We feel this is a momentous step towards the future and we feel that this will help in the future in balancing between water and environmental resources in California." 

In a statement announcing the lawsuits (, the groups said the biological opinions by the two fishery agencies pave the way" for construction and operation of the California WaterFix, the massive tunnels project that "experts say will further devastate fisheries and water quality of the San Francisco Bay-Delta."  

The groups claim, "While the biological opinions identify significant harm to winter-run Chinook salmon and other threatened and endangered species from the construction and operation of the proposed project, they do not identify how the massive new diversion tunnels can and should be operated to prevent that harm."

“Politics has trumped science once again,” said Doug Obegi , senior attorney with the Natural Resources Defense Council’s water program. “Instead of fixing the major environmental problems with the project, the agencies tasked with protecting our natural resources are making things worse and assuming that someone else will fix them down the line.”

John McManus, executive director of the Golden Gate Salmon Association (GGSA), said the current version of the California WaterFix will devastate salmon populations.

“This version of the tunnels will wipe out California’s salmon fishery and the families and communities that rely on salmon,” said McManus. “The problem is the state basically allowed the water users to design the tunnels and they’re so huge that the federal fish and wildlife agencies are basically throwing up their hands. It’s like they let the fox design the hen house so of course he made it easy to rob.”

The lawsuits claim that the biological opinions not only unlawfully fail to protect native salmon and other fish from extinction, but "allow river conditions to degrade further."

The groups said the tunnels would divert millions of acre-feet of water from the Sacramento River before it reaches the San Francisco Bay-Delta Estuary, noting that freshwater flows are "particularly important" to endangered species, including spring and winter-run Chinook salmon, Central Valley steelhead, green sturgeon and Delta and longfin smelt.

“Decades of research and study demonstrate that unsustainable diversion of water from the San Francisco Bay estuary is the single most important factor driving the decline of numerous fish and wildlife populations,” said Jonathan Rosenfield, lead scientist for The Bay Institute. “The tunnels do not change that reality and neither will an amorphous ‘adaptive management’ program that amounts to wishful thinking."

Rachel Zwillinger, water policy advisor for Defenders of Wildlife, said, “The proposed Delta tunnels could be the nail in the coffin for native fish like Chinook salmon and Delta smelt, causing them to disappear from the San Francisco Bay-Delta forever."

Neither NOAA Fisheries nor California Department of Water Resources have commented on the lawsuit, as is usually the case with active litigation.

The Delta Tunnels plan has been embraced by three presidential administrations - Bush, Obama and Trump - and two California administrations - Schwarzenegger and Brown. Opponents consider the project to be a bi-partisan water grab for corporate agribusiness, Southern California water agencies and oil companies conducting fracking and extreme oil extraction methods.

On the state level, the Delta Stewardship Council on June 23 endorsed controversial conveyance and storage amendments to the Delta Plan that project opponents say will hasten the approval of the California WaterFix, in spite of opposition by fishermen, family farmers, environmentalists and Delta residents who packed a room in the Holiday Inn in Sacramento.   

Public trust advocates say the California WaterFix project to build two giant 35 mile-long tunnels under the Delta would not only hasten the extinction of Central Valley steelhead, winter and spring-run Chinook salmon, Delta and longfin smelt, green sturgeon and other fish species, but would also imperil the salmon and steelhead populations on the Trinity and Klamath rivers that have been an integral part of the culture, religion and livelihood of the Yurok, Karuk and Hoopa Valley Tribes  for over thousands of years.

“By green-lighting the WaterFix, the federal government is green lighting extinction,” concluded Zwillinger.

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