The Supreme Court on Jan. 12, 2015 let stand a federal plan to protect California’s Delta ecosystem. The court refused to hear an appeal brought by agribusinesses trying to undermine protections for the Delta smelt under the Endangered Species Act.
Specifically, the businesses were trying to overturn a federal appeals court decision that had upheld the protections (known as a biological opinion or “biop”), which limit pumping during certain times of the year to protect this imperiled native fish. The protections are crucial to help maintain the health of California’s Bay-Delta estuary and the thousands of fishing and farming jobs that depend on its health.
Following is a statement from Kate Poole, litigation director of the Natural Resources Defense Council's (NRDC) Water Program:
“Today’s decision is good news for the thousands of fishermen, Delta farmers, and everyone who depends on the health of California’s Bay-Delta estuary and its native fisheries and wildlife. After six years of hard fought litigation, today’s court decision ends debate over the validity of these protections.
“Taking more water out of the Bay-Delta estuary won’t solve our problems. But the untapped potential of California’s sustainable water solutions amounts to millions of acre-feet of new water, far more than has ever been taken out of the Delta. We look forward to working with the state to help implement Proposition 1, the new $7.5 billion water bond, to make significant investments in water-smart solutions. Improvements to recycling, conservation, groundwater cleanup, and irrigation systems will reduce reliance on water from the Bay-Delta and improve the drought resilience of California’s farms, cities and environment.”
As a result of the population crash of numerous native fish in the 2000s, following several years of historically high levels of freshwater diversions out of the Delta, the U.S. Fish and Wildlife Service issued a biological opinion in 2008 to protect Delta smelt. After agribusinesses and water districts filed lawsuits challenging these protections for the Bay-Delta estuary, NRDC intervened in this litigation to defend the U.S. Fish and Wildlife Service’s biological opinion, and in 2014 the U.S. Ninth Circuit Court of Appeals upheld the validity of these protections under the Endangered Species Act.
Even with these protections in place, on average the state and federal water projects will divert as much water from the Delta as they did throughout the 1980s and 1990s. The historic drought in California—not protections for endangered species—has been the overwhelming cause of low water supplies throughout the state in recent years. Water exports from the Bay-Delta account for approximately 8% of the state’s total water use.
This decision lets stand the U.S. Ninth Circuit Court of Appeals’ March 2014 decision, which sided with the NRDC, Earthjustice, The Bay Institute and the federal government. The court determined that protections for the threatened Delta smelt—a bellwether species that indicates the health of the vital San Francisco Bay-Delta estuary—were scientifically sound, fully justified, and necessary to restore the health and water quality of this largest estuary on the west coast of the Americas.
These protections have undergone numerous independent scientific peer reviews, including by a panel of the National Academy of Sciences.
Historically, Delta smelt was one of the most common species in the estuary, but recent surveys showed the lowest abundance index on record after three years of drought. And even with these protections in place, on average the state and federal water projects will divert as much water from the Delta as they did throughout the 1980s and 1990s.
Source: Natural Resources Defense Council
