Baykeeper Sues Feds for Failing to Meet Endangered Species Act Requirements for Longfin Smelt

by Dan Bacher

Oakland, California—On December 22, San Francisco Baykeeper filed a lawsuit against the US Fish and Wildlife Service for violating the Endangered Species Act (ESA) in its failure to issue a final rule on the petition to list the SF Bay-Delta population of Longfin Smelt (Spirinchus thaleichthys) as an endangered species.

The agency’s proposal to list longfin smelt, a cousin of the endangered Delta smelt, is the result of a series of petitions to and lawsuits against the agency going back to 1992, according to the Baykeeper. The most recent monitoring data for longfin smelt in San Francisco Bay reveals that populations have crashed more than 99 percent, compared to when monitoring first started in 1967.     

“The agency proposed listing the SF Bay-Delta population of longfin smelt as an endangered species in 2022, but failed to meet a deadline established by Congress in the law to make a final listing determination and to designate what counts as critical habitat for the imperiled fish,” according to a statement from the San Francisco Baykeeper.”

Baykeeper put the agency on notice October 11 that it would take legal action unless the agency issued the required rulings. “These rulings were required by statute on October 7, but the agency has failed to meet its legal obligations,” the group stated.  

Baykeeper is represented in this legal action by Michael Lozeau, of the Oakland-based public interest law firm Lozeau-Drury.   

“The Fish and Wildlife Service must stick to the deadlines established by Congress and the Endangered Species Act,” said San Francisco Baykeeper staff attorney Ben Eichenberg. “Baykeeper will hold the agency responsible to fulfill its duties under the law, and to the people of the Bay Area.” 

”Baykeeper and our allies have been pressuring the agency for decades to protect the longfin smelt. Now that we’re in the final stretch, it’s disappointing that they’re delaying yet again. Longfin smelt need the full protection of the ESA to survive, and we can’t let a recalcitrant agency drive this fish population unique to San Francisco Bay into extinction,” concluded Eichenberg.  

The complaint says the dramatic decline of the once-abundant longfin smelt is the result of poor management of the Estuary by the state and federal governments.

“Catastrophic declines in the Longfin Smelt population have been caused by poor management of the Estuary by Federal and State water regulators, which have allowed excessive water diversions and drastically reduced freshwater flow into San Francisco Bay,” the lawsuit states. “During the 1987-1992 drought, which coincided with a period of relatively large water diversions and exports from the Estuary and its watershed, Longfin Smelt abundance declined dramatically, reaching historically low levels in the early 1990s.”

“The species partially recovered during the mid-to-late 1990s, when hydrological conditions improved, but the population decline resumed when dry conditions and increased water diversions prevailed during the early part of this century. The Estuary’s Longfin Smelt population reached a new record low in 2015. Longfin Smelt abundance in 2020...was less than 0.1 percent of the levels detected when sampling began in 1967, and the population has declined approximately 80 percent since it was listed as threatened by the State of California in 2009,” the complaint reveals.

The longfin smelt’s collapse parallels the collapse of Delta smelt, once the most abundant fish in the entire estuary and now virtually extinct in the wild. No Delta smelt have been found in the past five years of the California Department of Fish and Wildlife’s Fall Midwater Trawl (FMWT) survey on the Sacramento- San Joaquin River Delta:…

The abundance index — a relative measure of abundance — for the Longfin Smelt was 28 in 2020, 323 in 2021 and 403 in 2022. Those figures contrast with an index of 81,737 when the survey first began in 1967.   

The longfin smelt is an anadromous fish found in bay, estuary, and nearshore coastal environments of the Pacific Coast, from San Francisco Bay north to Cook Inlet, in south-central Alaska, according to the Notice. The San Francisco Bay Estuary (“Estuary”) supports the largest longfin smelt population in California, which the US Fish and Wildlife Service has determined is a “distinct population segment” (“DPS”)

Longfin smelt were once one of the most abundant resident fishes in the Estuary. “In recent years, longfin smelt numbers have plummeted to record lows in the Estuary, and it is thought to be extirpated or nearing extirpation in other California estuaries,” the Baykeeper notice stated.

The collapse of the longfin smelt in the estuary is part of the larger Pelagic Organism Decline (POD) caused by massive water diversions from the Delta by the state and federal water projects, along with toxics, water pollution and invasive species.. Between 1967 and 2020, the state’s Fall Midwater Trawl abundance indices for striped bass, Delta smelt, longfin smelt, American shad, splittail and threadfin shad have declined by 99.7, 100, 99.96, 67.9, 100, and 95%, respectively, according to the California Sportfishing Protection Alliance.  

Taken as five-year averages (1967-71 vs. 2016-20), the declines for striped bass, Delta smelt, longfin smelt, American shad, splittail and threadfin shad are 98.1, 99.8, 99.8, 26.2, 99.3 and 94.3 percent, respectively.  

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