Groups sue Brown administration over permit to kill endangered salmon, smelt in Delta Tunnels

By Dan Bacher | October 2, 2017 |  

Four environmental groups on Friday, September 22, filed a lawsuit challenging the Brown administration’s permit to kill endangered salmon and smelt in the proposed Delta Tunnels project.

The Center for Biological Diversity, Bay Institute, Natural Resources Defense Council and San Francisco Baykeeper filed the suit in California Superior Court in Sacramento,  represented by the nonprofit environmental law firm Earthjustice.

On July 28, the California Department of Fish and Wildlife (CDFW), under the helm of Director Chuck Bonham, issued an “incidental take permit” for the construction and operation of California WaterFix in “compliance” with Section 2081(b) of the California Endangered Species Act (CESA).

This suit is the first to challenge CDFW’s  issuance of a “take” permit for the tunnel operations. Representatives of the groups said the agency “improperly authorized” the California Department Water Resources to “kill and harm” state-protected fish species, including Sacramento River winter-run and spring-run chinook salmon, longfin smelt and Delta smelt. 

Ironically, the mission of the CDFW “is to manage California's diverse fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment by the public.”

But according to tunnels opponents, the CDFW is failing in its mission to “manage” California’s diverse fish populations by approving the take permit. 

“This is an unjustifiable permit,” said Jeff Miller, conservation advocate for the Center for Biological Diversity (CBD), in a phone interview. “The main thing is that the department appears to be doing everything they can to drive endangered fish species to extinction. The tunnels will have an impact on river flows at a critical time for salmon and smelt. They will reduce flows needed for the survival of the winter run, spring run and smelt.”

To grant a “take permit” under the CESA, the agency has to show how the project won’t jeopardize the continued existence of endangered species. Miller said the “mitigation” in the permit wouldn’t address the main problem of reduction in water flows on the Sacramento River and Delta that would take place if the project is built.

“They can pretend they are making up for water diversions at a critical time for these fish by throwing money at ‘habitat restoration,” but you just can’t mitigate for the taking of the water from these fish that essential for them to thrive,” Miller said.

The Department also violated CESA by failing to use the “best available science” on the impacts of the tunnels and associated water diversion, noted Miller.

Miller emphasized, “It’s time to kill this misguided tunnels project once and for all and focus on improving fresh water flows to restore the Delta.”  

The tunnels project, renamed the California WaterFix in 2015, would divert massive amounts of fresh water from the Sacramento-San Joaquin River Delta to San Joaquin Valley agribusiness interests and Southern California water agencies, doing enormous harm to imperiled Central Valley salmon runs, declining Delta fish populations and the Bay-Delta ecosystem. 

“State officials from the governor on down falsely claim that WaterFix would improve conditions for critically endangered native fish, including California’s once abundant chinook salmon,” said Trent Orr, Earthjustice staff attorney. “But disrupting a vast area with decades of construction to take even more fresh water from an already degraded Delta would hasten these species’ demise, not restore them to healthy populations.”   

The groups said the California WaterFix is only the latest in “a long line of water diversion projects intended to remove vast quantities of water from the Delta before it reaches San Francisco Bay.”

The project, a boondoggle that would cost anywhere from $17 billion to $67 billion depending on who you talk to, proposes to construct two 35-mile tunnels, each four stories high, to divert water from the Sacramento River in the north Delta to Central and Southern California.

“The water diversions would degrade habitat conditions for declining runs of salmon and smelt, kill young fish at diversion points, disrupt the estuary’s food chain and increase salinity in the Delta,” according to the groups.

Erica Maharg, managing attorney at San Francisco Baykeeper, pointed out how the tunnels project would devastate the San Francisco Bay ecosystem also.

“The Bay ecosystem needs freshwater inputs to survive and be healthy,” she said.  “By allowing the proposed tunnels to export too much freshwater for central and Southern California, the Department of Fish and Wildlife is shirking its duty to protect the already threatened and endangered fish of San Francisco Bay.”

"Construction and operation of the tunnels will devastate California's native fisheries, threaten thousands of fishing jobs, and leave the Bay-Delta estuary worse off than today," summed up Doug Obegi, a senior attorney with the Natural Resources Defense Council. 

The issuing of the CDFW incidental take permit is just one of many actions taken in Jerry Brown’s campaign to plunder California’s fish, wildlife, people and environment to serve the greed of Big Ag and Big Oil since he began  his third term as Governor in January 2011. 

Over just the past couple of months, the Brown administration has incurred the wrath of environmental justice advocates, conservationists and increasing numbers of Californians by:

On February 6 of this year, twelve public interest groups, led by Consumer Watchdog and Food & Water Watch, unveiled a comprehensive "report card" on Jerry Brown Administration’s environmental record showing that he falls short in six out of seven key areas, including oil drilling, fossil fuel generated electricity, toxic emissions, the California Environmental Quality Act, coastal protection and water. Read the report “How Green Is Jerry Brown?” at:  

CBD: Background on the California WaterFix

The proposed WaterFix diversion of Delta water would dramatically degrade habitat and water quality conditions for chinook salmon, longfin smelt and Delta smelt by decreasing flows into and through the Delta, placing already fragile and declining fish populations in serious jeopardy of extinction. All of these fish species are protected under the California Endangered Species Act.

The California Department of Fish and Wildlife cannot legally issue a permit to kill or “take” these protected species because operation of the tunnels would jeopardize the continued existence of the protected fish species.

Although the Act requires that any take of protected species must be minimized and fully mitigated, the Department failed to include mitigation measures that could successfully prevent these fish species from declining. The Department also violated the Act by failing to use the best available science on the impacts of the tunnels and associated water diversion.

Last week conservation groups challenged the legality of proposed bonds to pay for the construction of the tunnels project. Earlier this week Westlands Water District, the largest supplier of irrigation water to California farms, voted to not participate in the Delta tunnels project.

A court ruling against the bonds or rejection of the project by major water districts could be fatal to WaterFix because the project’s success hinges on funding commitments by the recipients of the project water. Public funds cannot legally be used to pay for the project. Conservation groups have also challenged the adequacy of the environmental review for WaterFix under California’s Environmental Quality Act.

In addition to driving endangered species toward extinction, the project would devastate Delta farmers, Sacramento Valley communities and what is left of California’s salmon fishing economy. In response, a large array of organizations, public agencies and municipalities have now filed multiple lawsuits challenging the project on a wide variety of legal grounds, including 21 conservation and fishing groups, 30 water agencies, and 12 counties and cities, as well as the Winnemem Wintu Tribe and Delta farmers.”

Follow Dan Bacher on Twitter @DanBacher

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